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2005 Supreme(Kar) 280
Karnataka High Court
T.PRATHAP - Appellant
Versus
STATE OF KARNATAKA - Respondent
Decided On : 04-21-05
W.P. : 9606 of 2005
A.NARAYANA BHAT, B.MANOHAR, K.SUBBA RAO, N.K.RARNESH, P.S.RAJGOPAL, SUBBA RAO
Headnote:Admission to post-graduate medical diploma
EDUCATION
Admission to post-graduate medical diploma -Government order permitting admission by giving service weightage to contract doctors under in-service candidates quota -Not permissible -Order is contrary to rules.
[S. Abdul Nazeer, J]: The order appointing them as Contract Doctors makes it clear that the appointees will not have any claim for regularisation or regular appointment. The appointments were terminable at any time. The Rules under which they were regularised as also the regularisation notification clearly stipulated that the services rendered on contract basis will not count for any purpose. If that is so, it is un-understandable as to how they are entitled for service weightage for their service during their contractual period of service.
Cases Referred: AIR 2003 SC 2952; AIR 1966 SC 1942: AIR 1984 SC 161; AIR 1987 SC 424; AIR 1991 284; (1993) 3 SCC 371; (2002) 4 SCC 662; (2004) 7 SCC 112; (2005) 2 SCC 638; AIR 2003 SC 2658; 2005 SCC (L & S) 154; AIR 2001 SC 706; AIR 1997 SC 2110; AIR 1998 SC 2979; 2002 (1) LLJ 463; AIR 1995 SC 795; 2005 AIR Kant.. HCR 762.
Inservice candidates
LABOUR AND SERVICES -Inservice candidates -To be treated as -Conditions -(i) Appointment should be in substantive capacity, (ii) such appointment should be in accordance with rules.
[S. Abdul Nazeer, J]: In order to become a member of service they must satisfy two conditions, namely, the appointment must e in substantive capacity and appointment has to be to the post in service according to Rules.
Doctrine of
Doctrine of -Applicability.
ESTOPPEL
[S. Abdul Nazeer, J]: The State Government has committed glaring illegalities while providing service weightage to Contract Doctors for their contractual period of service. The petitioner have sent their protest letters and have appeared in the PGET without prejudice to their rights to challenge the Government Order. Time was too short between the Government Order and the date of PGET. If they do not appear in PGET-2005, they will loose that opportunity for ever. There was hardly any other choice for them except to appear in the PGET-2005. The principles of estoppel by conduct or acquiescence has no application to the facts of this case.
Cases Referred: AIR 2003 SC 2952; AIR 1966 SC 1942: AIR 1984 SC 161; AIR 1987 SC 424; AIR 1991 284; (1993) 3 SCC 371; (2002) 4 SCC 662; (2004) 7 SCC 112; (2005) 2 SCC 638; AIR 2003 SC 2658; 2005 SCC (L & S) 154; AIR 2001 SC 706; AIR 1997 SC 2110; AIR 1998 SC 2979; 2002 (1) LLJ 463; AIR 1995 SC 795; 2005 AIR Kant.. HCR 762.
In-service candidates
KARNATAKA CONDUCT OF ENTRANCE TEST FOR ADMISSION TO POST GRADUATE MEDICAL AND DENTAL DEGREE AND DIPLOMA COURSES RULES, 2003
Rule 2(g) -In-service candidates -To be treated as -Conditions -(i) Appointment should be in substantive capacity, (ii) such appointment should be in accordance with rules.
[S. Abdul Nazeer, J]: In order to become a member of service they must satisfy two conditions, namely, the appointment must e in substantive capacity and appointment has to be to the post in service according to Rules.
Cases Referred: AIR 2003 SC 2952; AIR 1966 SC 1942: AIR 1984 SC 161; AIR 1987 SC 424; AIR 1991 284; (1993) 3 SCC 371; (2002) 4 SCC 662; (2004) 7 SCC 112; (2005) 2 SCC 638; AIR 2003 SC 2658; 2005 SCC (L & S) 154; AIR 2001 SC 706; AIR 1997 SC 2110; AIR 1998 SC 2979; 2002 (1) LLJ 463; AIR 1995 SC 795; 2005 AIR Kant.. HCR 762.
Admission of in-service candidates to post graduate diploma
KARNATAKA CONDUCT OF ENTRANCE TEST FOR ADMISSION TO POST GRADUATE MEDICAL AND DENTAL DEGREE AND DIPLOMA COURSES RULES, 2003
Rule 2(g) -Admission of in-service to candidates to post-graduate diploma -Whether contract doctors are in-service candidates and hence eligible for admission? No Order of Government giving service weightage to contract doctors is contrary to rules.
[S. Abdul Nazeer, J]: The order appointing them as Contract Doctors makes it clear that the appointees will not have any claim for regularisation or regular appointment. The appointments were terminable at any time. The Rules under which they were regularised as also the regularisation notification clearly stipulated that the services rendered on contract basis will not count for any purpose. If that is so, it is un-understandable as to how they are entitled for service weightage for their service during their contractual period of service.
In-service candidate
KARNATAKA CONDUCT OF ENTRANCE TEST FOR ADMISSION TO POST GRADUATE MEDICAL AND DENTAL DEGREE AND DIPLOMA COURSES RULES, 2003
Rule 2(g) -In-service candidate -Definition.
[S. Abdul Nazeer, J]: An in-service candidate means persons belonging to Health and Family Services, in addition to the other-services mentioned in the definition of the Rules.
Constitution of India -Statutory Rule -Article 162 -Statutory Rule -Executive cannot ignore and act contrary to it.
Cases Referred: AIR 2003 SC 2952; AIR 1966 SC 1942: AIR 1984 SC 161; AIR 1987 SC 424; AIR 1991 284; (1993) 3 SCC 371; (2002) 4 SCC 662; (2004) 7 SCC 112; (2005) 2 SCC 638; AIR 2003 SC 2658; 2005 SCC (L & S) 154; AIR 2001 SC 706; AIR 1997 SC 2110; AIR 1998 SC 2979; 2002 (1) LLJ 463; AIR 1995 SC 795; 2005 AIR Kant.. HCR 762.
Statutory Rule
CONSTITUTION OF INDIA - Article 162 -Statutory Rule -Executive cannot ignore and act contrary to it.
Cases Referred: AIR 2003 SC 2952; AIR 1966 SC 1942: AIR 1984 SC 161; AIR 1987 SC 424; AIR 1991 284; (1993) 3 SCC 371; (2002) 4 SCC 662; (2004) 7 SCC 112; (2005) 2 SCC 638; AIR 2003 SC 2658; 2005 SCC (L & S) 154; AIR 2001 SC 706; AIR 1997 SC 2110; AIR 1998 SC 2979; 2002 (1) LLJ 463; AIR 1995 SC 795; 2005 AIR Kant.. HCR 762.
( 1 ) THE petitioners in these cases have sought for a declaration that the service weightage of 4 marks for every completed one year of service on contract basis granted by the Government Order bearing No HFW 470 mps 2004, dated 18-1-2005 (Annexure-B to the writ petitions) by the clause reading "in case of service rendered as contract Doctors, the service weightage so admissible shall be 4 marks for every completed one year of service" is illegal and unconstitutional
( 2 ) THE brief facts of the case are as follows.- the petitioners are aspirants for admission to Post-graduate Medical and Dental and Diploma Courses for the academic year 2005-06. They are in-service candidates prescribed under the Rules governing admission. They have taken the Entrance Test as in-service candidates. The 1st petitioner though a Medical Officer in the services of the government of Karnataka has taken the test as an open category candidate since he does not fall within the definition of 'in-service candidate' prescribed under the Rules governing admissions. They are aggrieved by the impugned Government Order providing for a service weightage of 4 marks for every completed one year of service rendered as Contract Doctor. It is further contended that during the year 1992, pending direct recruitment as per Rules, as a stopgap arrangement, 380 doctors were appointed on contract basis by the State Government. Applications were invited at the District level stipulating that the appointment is on contract basis, the appointees will not have any claim for regularisation or regular appointment and they will not be entitled to any emoluments except a consolidated amount of Rs. 4,000/- per month. The appointments were on contract basis terminable at any time and the period of contract was stipulated as three years. Their appointment was purely contractual and no merited candidate applied in response. When the said Doctors were working on contract basis, in response to the Notification issued by the Karnataka Public Service Commission in the year 1995 most of these doctors working on contract basis also applied and failed to get a place in the select list due to their low merit. When the provisional select list was published in the year 1996 the contract doctors finding that most of them have failed to make it to the select list moved the Government for regularisation of their services and that their services regularised as per the Notification dated 24-7-1997. The Rules under which regularisation was made as also the regularisation notification clearly stipulated that the services rendered on contract basis will not count for any purpose. Similar regularisation exercise was made by another notification dated 7-12-1999. It is alleged that the Government went on to accommodate the contract doctors is evident from the fact that while the candidates who came to be selected on their merit pursuant to the applications invited by the Karnataka public Service Commission (for short, 'kpsc'), in the year 1995, interviews held and provisional list and select list published in the year 1996 were appointed only on 25-7-1997 and the contract Doctors who failed to get selected in the KPSC selection and who had been appointed on contract basis without any screening and without any selection were given regular appointments with effect from 9-6-1997 by a Notification dated 24-7-1997. The very same misplaced benevolence in favour of contract doctors is evident from the impugned Government Order dated 18-1-2005. The petitioners have urged that no weightage can be given for a period when the candidates could not be said to be in-service. The contract doctors are not members of service when the appointment on contract is contrary to the Statutory Recruitment Rules. It is not in substantive capacity Therefore, giving service weightage of 4 marks for every completed one year service on contract basis as per the government Notification dated 18-1-2005 is contrary
