Dr. H.C. Shiva Kumar vs State of Karnataka, Rajiv Gandhi University of Health Sciences, Vijayanagar Institute of Medical Sciences and Kidwai Memorial Institute of Oncology

Anand Byrareddy, J.—Heard the learned counsel for the petitioner and the learned counsel for the respondents. The facts of the case are as follows:

The petitioner is stated to have applied through the third respondent, Vijayanagar Institute of Medical Sciences, Bellary, seeking to undertone Post-Graduate Super Speciality Entrance Test-2012, which was to be conducted for determining the eligibility of students for admission to Doctor of Medicine and Master of Surgery, for the said academic year. Since the petitioner was in-service, there was an indication that he should apply through the proper channel and accordingly had made the application. The petitioner was successful, in that, he was on the merit list and the petitioner had also attended the interview and was allotted a seat as per order dated 1/8/2012. The petitioner had paid the requisite fee to prosecute the course. The petitioner then made a representation to the third respondent to pass an order of deputation along with pay and allowances, as was given to every in-service candidate who undertook the course. Acting on the representation, the third respondent is said to have passed an order on 21/8/2012, imposing certain conditions in order to provide the facility of deputation. Incidentally, one of the terms was that the period of study leave was to be treated as without pay and allowances, as per 35th Governing Council Meeting held on 24/5/2012. Since the condition imposed was onerous and according to the petitioner, is illegal, unconstitutional and opposed to public policy, and since the petitioner was also required to execute a bond that he would serve in Vijayanagar Institute of Medical Sciences, Bellary, for a period of ten years after completion of the course which he was undertaking and it was insisted that the petitioner execute such a bond, which he did on compulsion. It is at that stage that the petitioner has approached this court and there was an order of stay insofar as the conditions imposed on the petitioner, while he was permitted to proceed with his course of study with all pay and allowances. It is now that the petition is listed for Preliminary Hearing ''B'' Group, after service of notice on the respondents.

The respondents have, in their objections, contended that the petitioner has admitted that he was an in-service candidate in the Obstetrics and Gynaecology Department and was working as an Assistant Professor therein. The petitioner had filed an application seeking deputation, after completion of three years of service. Therefore it was resolved at the 35th Government Council Meeting that the petitioner undertake to forego his pay and allowances and to serve for ten years, after completion of the course, in the very institution. The justification of such an imposition is that the institute would, during the course of study undertaken by the petitioner, be required to appoint an adhoc employee in place of the petitioner who is to be paid for his services and since the institution bears the burden of such expenditure, it should not be duplicated and therefore keeping the interest of the institution in view, the Council was compelled to pass the resolution and it is therefore candidly admitted by the respondent No. 4 that it has consciously imposed such a condition, notwithstanding that there was a rule even which has been diluted by virtue of the amendment as per Annexure-B and therefore seeks to justify the impugned order. Having regard to the above facts and circumstances, the principle that a party cannot be compelled to contract out of the law, would apply squarely in the present case, in that, the contention that an in-service candidate ought to have put in more than ten years of service in order to avail the facility of receiving his pay and allowances, in order to pursue a course of study by way of deputation, is sought to be urged with reference to Annexure-B to the writ petition, which would not be relevant. As rightly pointed out by the learned counsel for the petitioner. The amendment is only to bring within its purview, the application of the Rule, as per Annexure-A, to institutions such as respondent No. 3, and has no bearing on the fact whether the petitioner would or would not be entitled to pay and allowances, if he is to proceed on deputation and pursue higher studies, as per Rule 61 and Clause 8 of Appendix - IIA of Karnataka Civil Service Rules, which reads as follows:

During the period of deputation, the Government servant shall be eligible to draw:

(a) Salary i.e., Basic Pay, Dearness Allowance, House Rent Allowance and City Compensatory Allowance which he would have drawn but for his deputation for higher studies or specialized training. During the period of extension, the Government servant shall be eligible only for leave salary admissible under these rules.

(b) Stipend equal to one-half of Daily Allowance at the place of study/training, admissible under the rules. No stipend will be admissible during the extended period of study/training. If the period of deputation for higher studies or specialised training is of the duration of three months or less, the Government servant shall be allowed to draw stipend equal to full Daily Allowance admissible under the Rules. If the Government servant is deputed for higher studies or specialized training at the same station - Municipal limits including the urban agglomeration area, he will not be eligible for stipend.

(c) Traveling Allowances as on tour from the headquarters to the place of study/training and back for the first journey to join the course of study or training and return journey after completion of the study/training.

(d) Tuition fees, if any, prescribed for the course of study or training.

It is evident that the petitioner cannot be denied the benefit that he is statutorily entitled. Therefore the respondent may have a higher objective in seeking to extract the undertaking from the petitioner which runs contrary to law, is void and hence shall not be binding on the petitioner.

The petition is allowed. The condition imposed and undertaking furnished by the petitioner, stand nullified. Annexures ''M'' and ''K'' stand quashed.