ORDER
B.S. Patil, J.
1. In this writ petition, the petitioner is challenging the selection list dated 25.07.2006 issued by the 1st respondent-University selecting the 4th respondent for the M.Ch (Urology) Post Graduate Super Speciality Course under the in-service quota for admission to the course. He is also seeking a direction to respondents 1 and 2 to consider the candidature of the petitioner for admission to the Course.
2. The brief facts of the case which arc relevant for resolving the controversy raised can be set out as under:
The petitioner is a Post Graduate in General Surgery and has been serving at the Karnataka Institute of Medical Sciences, Hubli, (KIMS) which is an autonomous body coming under the jurisdiction and purview of the Rajiv Gandhi University. Petitioner claims to have joined the services at KIMS in June 2002 as a Lecturer and has been presently serving as Assistant Professor in the said Institute since 02.09.2005. He has put in more than four (4) years of service continuously in the said Institute
3. By a Notification dated 07.06.2006 vide Annexure-A, the respondent-University invited applications from the eligible candidates to appear for the Entrance Test for the Post Graduate Super Speciality Courses 2006-2007. As the petitioner was eligible to take the entrance test as an in-service doctor, he submitted his application to the University through proper channel. As per the notification, two seats were notified as available in Urology at Bangalore Medical College, Bangalore. Out of the two seats, one was earmarked for an in-service candidate and the other for open category candidate. Petitioner further claims that as he was fully eligible for selection, he was invited to take up the entrance test.
4. The test consists of a written examination and viva-voce. The results of the entrance examination were notified by the University on 12.07.2006. As per the list announced vide Annexure-'F', the petitioner was shown to have obtained 66 marks whereas the 4th Respondent was shown to have obtained 57 marks. As per the provisional marks list vide Annexure-F candidates who secured 50% and above in the entrance test were informed that they were eligible to appear for the viva-voce examination scheduled to be held on 14.7.2006. The petitioner submits that he has taken the viva-voce examination. He contends that the marks earmarked for viva-voce test being only 5, even if the marks earmarked for the viva-voce are ignored or for that matter all the 5 marks in the viva-voce examination are stated to have been assigned to the 4th respondent, his merit will be less than that of the petitioner as the total marks of the 4th respondent would come to 62 as against 66 obtained by the petitioner. The grievance of the petitioner is that by showing undue favour, the 4th respondent has been selected to the post though he was less merited than the petitioner and the petitioner has been placed in the waiting list as per the select list published on 25.07.2006 vide Annexure-H. Petitioner is aggrieved by the selection of the 4th respondent. Hence, he has approached this Court in this writ petition.
5. Learned Senior Counsel Sri. Subramanya Jois appearing for the petitioner has raised the following contentions:
i) That the inclusion of the name of the 4th respondent in the select list of candidates to the exclusion of the petitioner who is placed in the waiting list is capricious, arbitrary, whimsical and is not based on any objective consideration as the petitioner is more meritorious than the 4th respondent.
ii) That the Karnataka Medical Education Department (Deputation of In-service Candidates to Post Graduate Super Speciality Courses) Rules, 2006 do not govern selection to the Super Speciality Courses in question nor would Section 3 or Section 8 of the Karnataka State Civil Services Act. 1978 under which the 2006 Rules are passed to enable any criteria being prescribed for selection to such courses.
iii) That, keeping in view the powers conferred on the University by Section 35(a) and (c) of the Rajiv Gandhi University Act and the provision contained under Section 64 of the Act, the State Government has no authority to frame any such rules regulating the selection to the Post Graduate Super Speciality Courses. At any rate, as per Section 64 of the Rajiv Gandhi University Act, the ordinance framed by the University has overriding effect over the rules framed by the State Government in so far as they pertain to selection to the Post Graduate Courses in Super Speciality.
iv) That the petitioner being an employee of the autonomous institution is not a Government servant nor is he an in-service candidate as per the definition of the term 'in-service candidate' contained in the 2006 Rules framed by the State Government and therefore the said rules are inapplicable to the petitioner.
v) That, it is the ordinance framed by the University as per the Notification dated 11.11.2002 as amended by the Notification dated 26.07.2004 that governs the case of the petitioner and that as per the 2004 amendment, the term in-service candidate' is defined in Section 2(j) to include the candidate employed in an autonomous institution as Lecturers/Assistant Professors/Professors which autonomous institutions are run by the Government in the State of Karnataka and that KIMS being an autonomous institution run by the State Government, the petitioner is an in-service candidate as per the 2002 Ordinance as amended in 2004 and is therefore entitled for the benefit of the said Ordinance and that the 2006 Deputation Rules cannot be made applicable to him.
vi) That, the 2006 Rules framed in exercise of the powers conferred Under Section 3 of the Karnataka State Civil Services Act of 1978 lack legislative competence, in that, the State Government has no power to frame rules governing selection and admission to Super Speciality Courses in the guise of exercising the powers of Regulating deputation of in-service candidate. In other words, he contends that 2006 Rules in so far as it applies to selection of in-service candidates for admission to Post Graduate Super-Specialty Courses in Medical Colleges lack the legislative sanction, as they do not pertain to service matter regulating the service conditions of the employees of the State Government but encroach upon the field of admission to the Post Graduate Super-Specialty Courses.
6. Learned Government Advocate, Sri. Manohar and learned Counsel appearing for the Rajiv Gandhi University of Health Science, Sri. N.K. Ramesh have supported the action of the Respondent - Authorities and have contended as under:
(i) That, petitioner having applied as an in-service candidate as per the 2006 Rules is estopped from contending that he is not governed by the said Rules
(ii) That, the 2002 Ordinance only applies to the General Merit candidates and not to the in-service candidates.
(iii) That, in the 2006 Rules framed by the State Government there is an anomaly in the definition of in-service candidate in as much as Clause 2(d) of the Rules which defines the expression 'in-service candidate' omits to refer to the employees employed in autonomous institutions coming under the control of the State Government. Therefore the said anomaly has to be ignored and the definition clause has to be interpreted to include a candidate working in the autonomous institutions as that of KIMS and if so done the petitioner is also governed by the 2006 Rules. As the definition of the term, 'in-service candidate' in the 2006 Rules provides the eligibility criteria of 10 years service for being considered for selection to the Post Graduate Super-Specialty Course coupled with the requirement of satisfactory completion of probationary period the petitioner is ineligible under the said Rules.
(iv) They further contend that if this Court finds that the petitioner does not fall within the ambit of the definition of 'in-service candidate' under Clause 2(d) of the 2006 Deputation of In-service Candidates Rules, then the petitioner is disentitled to claim any benefit and seek admission as an in-service candidate as he would only be entitled to claim the seat as against General Merit category wherein the only seat available has been given to a candidate who has scored 72 marks which is more than the marks secured by the petitioner.
(v) With regard to the contention of the learned Counsel for the petitioner that if the petitioner were to be ineligible as per the 2006 Rules it was inconceivable as to how the petitioner could be selected and placed in the waiting list, the learned Government Advocate submits that the Selection Committee has taken a decision to provide relaxation of the requirement of 10 years minimum service wherever no eligible candidate is available as otherwise the seats would have gone waste.
7. Learned Counsel for the 4th respondent Sri. C. Dinakar has strongly contended that if it is the case of the petitioner that he is not governed by the Deputation of In-service Candidates Rules 2006 framed by the State Government, then he is not entitled for the benefit under the in-service category. He further submits that in the absence of any challenge to the Selection List and to the 2006 Rules, the petitioner cannot make any legitimate grievance against the selection of the 4th respondent He further submits that the list is rightly prepared in accordance with Rule 6 of the 2006 Rules which prescribe seniority-cum-merit as the basis for preparation of the select list. He contends that the 4th respondent has put in 14 years of service as an eligible Government candidate whereas the petitioner has put in only a couple of years of service. It is further urged by him that as per the Rules and Regulations and the bye laws applicable to KIMS, Hubli the rules applicable to State Government service is applicable and hence the 2006 Rules are applicable to the petitioner also.
8. Having heard the learned Counsel appearing for the parties and upon careful perusal of the materials placed before me, the question that falls for consideration in the instant case is:
Whether the impugned selection list prepared selecting the 4th respondent for admission to the Post Graduate Super-Specialty Course under the in-service quota to M.Ch Urology Course excluding the petitioner by placing him in the waiting list is illegal and unsustainable. If so whether the petitioner is entitled for a direction for consideration of his candidature for selection and admission to the Post Graduate Super-Specialty Course in question?
9. The answer to the above question mainly depends on the question as to which Rules govern the instant selection. It is the case of the State Government and the University that the 2006 Rules framed by the State Government in exercise of the powers conferred under Section 3 of the Karnataka Civil Services Act, 1978 govern the selection of the candidate to the Post Graduate Super-Specialty Course. These Rules, produced vide Annexure-'J', have come into force w.e.f. 22.05.2006. They arc framed by the State Government in exercise of the powers conferred by Sub-section (1) of Section 3 r/w Section 8 of the Karnataka State Civil Services Act, 1978. They are known as the Karnataka Medical Education Department (Deputation of In-service Candidates to Post Graduate Super-Specialty Courses) Rules, 2006 (for short the 2006 Rules'). These Rules are applicable to selection of in-service candidates for admission to Post Graduate Super-Specialty Courses in Medical Colleges in Karnataka against the seat reserved under Government Quota to in-service candidates. So far as the manner and method of conducting the entrance test by the Entrance Test Committee, reference is made under Rule 2(a) and (b) to the Entrance Test conducted by the Rajiv Gandhi University of Health Sciences as per the provisions of the ordinance governing conduct of entrance test to the Post Graduate Super-Specialty Courses from time to time and as amended from time to time [See Rule 2(a)]. Likewise, the definition of the term 'entrance test committee' as contained under Rule 2(b) also makes reference to the Committee constituted under the ordinance framed by the Rajiv Gandhi University of Health Sciences governing the conduct of entrance test. But in so far as in-service candidates are concerned, Rule 2(d) defines 'in-service candidates' as under:
In-service candidate' means a person in the service of the State Government working in the Medical Education Department in the cadre of Tutor, Lecturer, Assistant Professor, Associate Professor or Professor in the Government Medical College and General Duty Medical Officer, Specialist and Senior Specialist in Health and Family Welfare Services Department, I.M.Os with P.G. Qualification, Deputy Surgeon, Surgeon working in ESI (M)S under Labour Department, under the control of Health and Family Welfare Department and Health and Family Welfare Department (Medical Education), whose probation period is declared to have been completed satisfactorily and who has put in a minimum period of 10 years of service.
It is thus clear that in order to be eligible, an in-service candidate must be a person in the service of the State Government working in the Medical Education Department in the cadre of Tutor, Lecturer, Assistant Professor, etc., and must have put in a minimum of 10 years of service and whose probationary period has been declared as satisfactory. Rule 3 which relates to appearance of the in-service candidates at Entrance Test provides in Sub-clause (2) that an in-service candidate who has taken the Entrance Test and is declared to be qualified for admission shall be eligible for selection to be deputed for acquiring Post Graduate Super-Specialty Courses among other in-service candidates based on seniority cum inters merit. Rule 5 deals with the Committee for selection of in-service candidate which consist of the Director of Medical Education as its Chairman and three members the Registrar of the Rajiv Gandhi University of Health Sciences, the Director, Health and Family Welfare Department, the Joint Secretary to Health and Family Welfare Department (Medical Education). The Deputy Director of Medical Education is the Member Secretary. This Committee selects the in-service candidates on the basis of their seniority cum merit after their merit is determined by the Entrance Test Committee. The preparation of select list of in-service candidates is provided for under Rule 6 which provides that the Selection Committee shall prepare and publish the list on the basis of seniority cum merit for each academic year. Upon such list being prepared, the candidate whose name is included in the select list shall be eligible for allotment to the colleges for admission to Post Graduate Super-Specialty Courses through counselling conducted by the Selection Committee as provided under Rule 7. As per Rule 8, the candidates who are deputed under these Rules for prosecuting studies are eligible for pay, dearness allowance, house rent allowance, city compensatory allowance, conveyance allowance or any kind of emoluments admissible to their respective posts held by them or for fee payable for such course of study during the period of Post Graduate Super-Specialty Courses under Rule 61 r/w Appendix II-A -1 of the Karnataka Civil Service Rules. As per Rule 9 of the 2006 Rules, the provisions of the Karnataka Civil Service Rules regulating deputation of or grant of study to Government Service for prosecuting special course of study in higher studies or specialised training within India in so far as they are not inconsistent with the provisions of the 2006 Rules are applicable.
10. It is thus clear from a perusal of the 2006 Rules that a candidate who is serving in an autonomous institution though under the control of the State Government is not included in the definition of in-service candidate. These Rules are framed in exercise of the powers under the Karnataka State Civil Services Act, 1978 and are designed to regulate the conditions of service pertaining to deputation of in-service candidates to higher studies in Super Speciality Courses (Medical). They cannot therefore govern other employees or candidates who are not Government servants. The petitioner is right in contending that 2006 Rules do not govern him and are therefore not applicable to his case. If that be so, the next question is whether the petitioner can claim the benefit of in-service candidate de-hors 2006 Deputation Rules.
11. We have to now see the ordinance framed by the Rajiv Gandhi University on 11.11.2002 in exercise of the powers conferred under Sub-section (1) and (2)(a) of Section 35 of the Rajiv Gandhi University of Health Sciences Act, 1994. The preamble to these Rules states that as the State Government by resolution dated 17.8.2002 has vested the responsibility of conducting the entrance test for admission to Post Graduate Super Speciality Courses in the medical faculty with the Rajiv Gandhi University of Health Sciences (Karnataka) from 2002-2003 onwards, the Ordinance is issued to conduct the Medical Super Speciality entrance test. A perusal of these Rules would show that Section 2(c) defines the term 'entrance test' as under:
Entrance Test' means the Entrance Test conducted under these Ordinances for admission to the Post-Graduate Super Speciality courses in Government Medical Colleges, Kidwai Memorial Institute of Oncology and Jayadeva Institute of Cardiology, Autonomous Institutions in the State of Karnataka and other affiliated Colleges/ Institutions.
Section 2(g) defines 'merit' as under:
'Merit' means the order of merit determined by the Entrance Test for Post Graduate Super Speciality course for every year of admission to such courses under Section 5.
12. An entrance test shall be conducted for the candidates seeking admission for the courses specified in the Annexures and for seats which fall to the share of the Government. The Entrance Test Committee consists of the Vice Chancellor of Rajiv Gandhi University of Health Science as Chairman and the Director of Medical Education as Vice-Chairman. It consists of 8 other members who are the Heads of different Government and other autonomous Institutions under the control of the Government and the Registrar, Rajiv Gandhi University of Health Science as Member Secretary. This Committee is empowered to take decision in the matter of conduct of the entrance test. Rule 5 of the 2002 Ordinance deals with the merit list which reads as under:
5. Merit List
(1) The Committee shall prepare the first merit list on the basis of marks obtained in the Entrance Test. The minimum percentage of marks for eligibility for admission shall be 50%. Those qualifying by getting 50% will be called for the interview on the basis of the first merit list after which the final merit list and the list of candidates selected and a waiting list will be published.
(2) No candidate shall be eligible for admission to any Post-Graduate Super Speciality courses merely on the ground of his name being included in the merit list Unless the candidate satisfies the conditions and rules of admission for the courses, whether made before or after the commencement of this Ordinance as well as the regulations, if any made by the MCI, Government or RGUHS, he shall not be eligible for admission
13. By way of notification dated 26.07.2004 an amendment is introduced to this Ordinance by the University. The amendment incorporates Rule 2(j) as a new sub-rule to define the expression 'in-service candidate'. In Rule 5 of the 2004 Amendment while dealing with the merit list, provision is made for preparation of separate merit list for in-service candidate in Sub-clause (2). Sub-clause (3) of Rule 5 makes provision for 50% of seats available in the Post-Graduate Super
Speciality Course to be reserved to the in-service candidates. The definition of 'in-service candidate' apart from including the regular State Government employees holding the posts of Lecturers, Professors, Assistant Professors etc., also includes such employees employed in autonomous institutions run by the Government of Karnataka. It is useful to extract the definition of 'in-service candidate' contained in the amended provisions of Rule 2(j) of the 2002 Ordinance, as amended in 2004 and the reference to the merit list as contained in Rule 5.
Rule 2(j) - In-Service Candidates' means regular stale government employees holding the post of Lecturers / Assistant Professors / Professors in Medical Education Department and General Duty Medical Officers, Specialists and Senior Specialists in Health & Family Welfare Services Department of Government of Karnataka, Employees State Insurance (Medical Services) and autonomous institutions run by Government of Karnataka in the State of Karnataka.
'Rule 5. Merit List:
1. The Committee shall prepare the merit list on the basis of marks obtained in the Entrance Test. The minimum percentage of marks for eligibility for admission shall be 50%. Those qualifying by obtaining 50% of marks in the written test shall be called for interview in the ratio of 1:5 (Five qualified candidates for each seat). After the interview, the final rank lists of candidates selected and the waiting lists shall be published.
2. There shall be a separate merit list for in-service candidates.
3. Out of the Post Graduate Super Speciality Seats available, 50% of the seats have been reserved to the In-service candidates.
14. A conjoint reading of the various provisions contained in 2002 Ordinance, as amended by the Notification issued in the year 2004 would show that the definition of 'in-service candidate' includes an employee holding the post of Lecturer, Professor or Assistant Professor in an autonomous institutions run by the Government apart from the other State Government employees holding such posts in the Medical Education Department. They are entitled to take part in the entrance test conducted by the Entrance Test Committee. The merit list is required to be prepared on the basis of the marks obtained in the entrance test. Minimum eligible percentage being 50% and those obtaining the qualifying marks of 50% in the written test shall be called for interview in the ratio of 1:5 and after the interview the final rank list of the candidates selected as also the waiting list shall be published. As per these rules the entire responsibility of preparing the merit list vests with the Entrance Test Committee. Rule 5 has been amended by the 2004 amendment which mandates that the Committee shall prepare the merit list on the basis of the marks obtained in the entrance test and after interview the final rank list of the candidates selected and those placed in the waiting list is required to be published by the Committee. It is thus clear that there is a marked difference in the two sets of Rules namely the Ordinance and the 2006 Deputation Rules.
15. It is not the case of either of the parties that the 2002 Ordinance as amended do not govern the field now. If that is so there is substantial force in the argument of the learned Senior counsel for the petitioner that the case of the petitioner is governed by the 2002 Ordinance, as amended in 2004 as he falls within the definition of 'in-service candidate' as defined in the said Rules and therefore he is not ineligible nor can the Rule of seniority-cum-merit be applied to him vis-a-vis the 4th respondent who is governed by the 2006 Rules.
16. The contention of Sri. Dinakar is that as per the Rules and Regulations including the Bye Laws of Karnataka Institute of Medical Sciences, Hubli, the provisions regarding service conditions contained in the Karnataka Civil Services Rules shall continue to be applicable mutatis mutandis as in the case of other conditions of services). As per bye-law No. 24 the rules applicable to the State Government services shall be followed and hence the 2006 Selection and Deputation of In-service Candidates Rules are applicable to the petitioner is his submission.
17. The Karnataka Institute of Medical Sciences, Hubli, Rules and Regulations 1995 (for short the Rules) at Rule XXI enacts as under:
XXI) PROVISION REGARDING SERVICE CONDITION: The Service conditions, regarding salary, age of Superannuation, conduct of disciplinary proceedings and other issues shall have to be governed by bye-laws that are framed and given effect to, the existing provisions of Karnataka Civil Services Rules shall continue to be applicable mutatis mutandis as in the case of Government Servants.
18. Further, in the bye-laws framed by the Institute bye law No. 17 deals with deputation. It reads as under:
17) DEPUTATION AND PERMISSION TO VISIT WORKS AND STUDY OUTSIDE THE INSTITUTE: The Director may depute members of the academic and other staff to any place outside the Institute but within India for the work of the institute or for any other specified purpose. If the period is in excess of 6 months, approval of the Governing Council shall be obtained. The Governing council may require the staff to work in the Institute after their return from deputation to serve a specific period.
19. Again, in the Conduct and Disciplinary Proceedings Rules at bye-law No. 7, provision is made for deputation and permission to visit/work for study outside the Institute. It reads as under:
7) DEPUTATION AND PERMISSION TO VISIT/WORK AND STUDY OUTSIDE THE INSTITUTE:
1) The Director may depute members of the academic and others staff to any place outside the Institute but within India in the interest of the Institute's service or for any other specified purpose. If the period of such deputation is in excess of six months, approval of the Governing Council shall be obtained.
2) In such, cases of deputation, the Governing Council may require an undertaking in writing to serve the Institute or return for such period as it may prescribed.
20. It is thus clear from the above that as per Rule XXI, the existing provisions of Karnataka Civil Service Rules shall continue to be applicable regarding service conditions until the bye-laws are framed. Therefore, the 2006 Rules which were not in existence at that time cannot be made applicable. Further, even the relevant bye-laws referred to above do not indicate that the Rules to be framed by the Government regarding Deputation of In-service Candidates for higher studies shall be applicable to those working in KIMS. In this view of the matter, the argument of Sri. Dinakar cannot be accepted.
21. Thus what emerges is that the petitioner is governed by the 2002 Ordinance as amended by the Notification of the year 2004. The Deputation Rules of 2006 do not apply to the petitioner. This leads to some what anomalous situation, in that, while 2002 Ordinance regulates both the in-service Government Doctors and the employees working in autonomous institutions as Lecturers, Professors or Assistant Professors. The 2006 Rules regulate the admission of the Government Doctors only working as Lecturers, Professors etc. These Government Doctors are at a disadvantage if one applies the 2006 Rules, in that, they have to complete a minimum service of 10 years coupled with satisfactory completion of the probationary period so as to be eligible for selection for the Post-Graduate Super Speciality Course. Whereas, the employees of the autonomous institutions do not have to undergo such a rigor. This anomaly requires to be addressed, It is for the competent authority to address this anomaly.
22. In so far as the petitioner is concerned as 2006 Rules are not applicable to him the Rule of Seniority-cum-merit or the Rules of inters Seniority-cum-merit between the petitioner and the 4th respondent cannot be made applicable by taking recourse to the 2006 Rules. The case of the petitioner is required to be considered under the 2002 Ordinance as amended in 2004.
23. Although the petitioner has contended that the 2006 Rules are ultra-virus the scope and ambit of the power conferred under Section 3 read with Section 8 of the Karnataka Civil Services Act. 1978 and that the Ordinance framed by the Rajiv Gandhi University of Health Sciences have over-riding effect over the 2006 Rules, in view of the primacy given to them Under Section 64 of the Rajiv Gandhi University of Health Sciences Act, the said question does not directly arise in this case nor has the petitioner challenged the 2006 Rules on that ground in this writ petition. Therefore, it is not appropriate or desirable to consider the said contention in this writ petition. This point requires consideration in an appropriate proceedings where such a contention is specifically taken up and has bearing on the facts of the case. In the instant case the petitioner contends that he is not governed by 2006 Rules, hence it is unnecessary to examine this question in this writ petition. Even proceeding on the basis that the ordinance framed by the University applies to both the petitioner and the 4th respondent, the resultant position would be that the petitioner emerges more meritorious. Likewise, if the 4th respondent is governed by the 2006 Regulations and the petitioner by the Ordinances framed by the University then also the petitioner emerges as more meritorious. The records reveal that the Entrance Test Committee has conducted the Test and assessed the merit of the candidates, but the Selection List is published by the Selection Committee as per 2006 Rules by applying the 2006 Rules which is apparently illegal.
In view of the above, the writ petition is allowed. The impugned selection list insofar as the Post-Graduate Super Speciality Course M.Ch. Urology is concerned is set aside. The respondent-authorities are directed to redo the list in accordance with the 2002 Ordinance, as amended in the year 2004 and announce the selection list expeditiously on the basis of the marks obtained by the petitioner and the 4th respondent, at any rate within a period of three weeks from the date of receipt of a copy of this order.
Ordered accordingly. No costs.