IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 17TH DAY OF OCTOBER, 2022

BEFORE

THE HON’BLE MR.JUSTICE S.G.PANDIT

WRIT PETITION NO.25369/2018 (S-RES)

BETWEEN:

DR. BASAVARAJ
S/O A D SHIVALINGAPPA,
AGED ABOUT 44 YEARS,
NO.152, 6TH BLOCK,
5TH CROSS, BSK III STAGE,
III PHASE, BANGALORE-560085.
...PETITIONER
(BY SRI GAURAV G K, ADV.)

AND:

1. STATE OF KARNATAKA
REPRESENTED BY ITS
ADDITIONAL CHIEF SECRETARY,
DEPARTMENT OF HEALTH AND
FAMILY WELFARE,
(MEDICAL EDUCATION),
AMBEKDAR VEEDHI,
BANGALORE-560001.

2. KIDWAI MEMORIAL INSTITUTE OF ONCOLOGY

DR. M H MARIGOWDA ROAD,
BANGALORE-560029,
REPRESENTED BY ITS DIRECTOR.

3. THE DIRECTOR
KIDWAI CANCER INSTITUTE,
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DR. M H MARIGOWDA ROAD,

BANGALORE-560029.

4. DR. PRABHA SESHACHAR

W/O A N RAM PRASAD,
AGED ABOUT 52 YEARS,
R/AT NO.410, 7TH CROSS,
10TH MAIN, 1ST BLOCK,
JAYANAGAR,
BENGALURU-560011.
…RESPONDENTS
(BY SRI T P SRINIVAS, PRL.GA FOR R1
SRI ARAVIND V CHAVAN, ADV. FOR R2 & R3
SRI P.S.RAJAGOPAL, SENIOR COUNSEL A/W
SMT. ASHWINI RAJAGOPAL, ADV. FOR R4)

THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF

THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
DATED 26.03.2018 PASSED BY THE R-3 APPOINTING THE R-4
TO THE POST OF SR. SURGEON / PROFESSOR (RESIDENT
MEDICAL OFFICER) VIDE ANNX-A AND ETC.

THIS PETITION COMING ON FOR PRELIMINARY ORDERS

THROUGH VIDEO CONFERENCE THIS DAY, THE COURT MADE
THE FOLLOWING:-

ORDER
The petitioner, a candidate who applied for the post of

Senior Surgeon/Professor (Resident Medical Officer) (for short

“RMO”) in the second respondent-Kidwai Memorial Institute

of Oncology is before this Court under Article 226 of the

Constitution of India, questioning the correctness and

legality of appointment of respondent No.4 in pursuance of

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Annexure-A notification bearing No.PɹL/¹§âA¢-1/42/2017-18

dated 26.03.2018 and for further direction to respondent

Nos.1, 2 and 3 to appoint the petitioner to the post of Senior

Surgeon/Professor (RMO).

2. Heard learned counsel Sri.Gaurav G.K. for the

petitioner; Sri.T.P.Srinivas, Principal Government Advocate

for respondent No.1, learned counsel Sri.Arvind V Chavan for

respondent Nos.2 and 3, and learned Senior counsel

Sri.P.S.Rajagopal along with Smt.Ashwini Rajagopal, learned

counsel for respondent No.4. Perused the writ petition

papers.

3. Learned counsel for the petitioner would submit that

under notification dated 22.02.2018, the second respondent

invited applications to fill up one post of Senior Surgeon/

Professor (Resident Medical Officer). The qualification

prescribed was a Degree in Medicine of any University

established by law in India; should have Post Graduate

qualification in any subject in Medical Faculty viz., MS/MD/

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Equivalent qualification in clinical/para-clinical subjects;

should have experience in the subject of not less than 8 years

and preference to candidates with experience in Oncology and

academic and Professional attainments and Hospital

Administration. The petitioner and respondent No.4 applied

for the said post of RMO and respondent No.4 was selected

and appointed vide Annexure-A dated 26.03.2018 which is

under challenge in this writ petition.

4. Learned counsel for the petitioner would submit that

the petitioner possesses qualification of MD in Biochemistry

along with MBBS whereas respondent No.4 possesses

qualification of MBBS, Diploma in Anesthesiology and

Acupuncture. Therefore learned counsel would submit that

respondent No.4 would not possess qualification of Post

Graduation. Hence, he would not be entitled for

appointment. It is submitted that the second respondent

committed an error in appointing a person who would not

possess prescribed qualification. Learned counsel would

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submit that the petitioner fulfills the requisite qualification

and he is most meritorious applicant to be appointed as RMO

in preference to respondent No.4. Learned counsel would

further contend that appointment of 4th respondent is not

only in violation of qualification prescribed under Cadre and

Recruitment Rules of second respondent-Institute, but who

would not even meet the eligibility criteria. Thus, he prays for

allowing the writ petition.

5. Learned counsel Sri.Aravind V.Chavan appearing for

respondent Nos.2 and 3 would justify the appointment of 4th

respondent. Learned counsel would submit that 4th

respondent would possess requisite qualification as

prescribed under the notification inviting applications as well

as Cadre and Recruitment Rules. Moreover, he submits that

the petitioner has no locus standi to challenge the

appointment of 4th respondent, since he does not possess the

qualification prescribed under the notification as well as

Cadre and Recruitment Rules. He submits that Post

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Graduation required is in clinical and para-clinical subjects

whereas the petitioner possesses Post Graduation in

Biochemistry which is a pre-clinical subject. Placing reliance

on the Regulations on Graduate Medical Education, 1997

(“1997 Regulations” for short), learned counsel for respondent

Nos.2 and 3 would submit that respondent No.4 possess

additional qualification of Diploma in Hospital Management

and she is an assessor for National Accreditation Board for

Hospitals and Healthcare Providers. Thus, he prays for

dismissal of the writ petition.

6. Learned Senior Counsel Sri.P.S.Rajagopal appearing for

respondent No.4 submits that the petitioner who does not

possess requisite qualification has no locus standi to

challenge the appointment of respondent No.4. Learned

Senior counsel would submit that 4th respondent possesses

qualification prescribed by the second respondent-Institution

in terms of recruitment notification as well as in terms of

Cadre and Recruitment Rules. Learned Senior counsel also

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submits that the qualification of MD in Biochemistry is pre-

clinical subject and it is not a clinical/para-clinical subject, in

terms of 1997 Regulations. Further, learned Senior counsel

also submits that the eligibility criteria also requires

experience in the subject for not less than 8 years, which the

petitioner does not possess. Learned Senior counsel would

submit that the petitioner acquired MD in Biochemistry in the

year 2017 and as on the last date for submitting the

application, the petitioner had no qualification of 8 years

experience from the date of acquiring Post Graduation MD in

Biochemistry.

7. Replying, learned counsel for the petitioner would

submit that the 8 years experience is counted by the second

respondent-Institute from the date of acquiring MBBS and

not from the date of acquiring Post Graduation. Learned

counsel for respondent No.2-Institute also would submit that

experience is considered from the date of acquiring MBBS

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degree and not from the date of acquiring Post Graduation for

assessment.

8. After hearing the learned counsel for the parties and on

perusal of the writ petition papers, the only point which falls

for consideration is as to whether the petitioner possesses

qualification in terms of the notification dated 22.02.2018

(Annexure-B) for the post of RMO?

9. Answer to the above point would in the negative for the

following reasons:

Under notification dated 22.02.2018, the second

respondent-Institute invited applications from the eligible

candidates for one post of RMO. The prescribed qualification

is as follows:

“(i) Should be a holder of a Degree in Medicine of any

University established by law in India;

(ii) Should have Post Graduate qualification in any

subject in Medical Faculty viz., M.S./M.D./ Equivalent
qualification in clinical/para-clinical subjects;
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(iii) Should have experience of work in the subject of

not less that 8 years; and

(iv) Preference will be given to candidates with

experience in Oncology and academic and Professional
attainments/ and Hospital Administration.”

A reading of the above makes it clear that a candidate should

possess a degree in Medicine of any University established by

law; should have Post Graduation qualification in any subject

in Medical Faculty i.e., M.S., M.D.,/ Equivalent qualification

in clinical/para-clinical subjects; experience of 8 years in the

subject and preference would be given to candidates with

experience in Oncology and academic and Professional

attainments and Hospital Administration.

10. Admittedly, 4th respondent possesses preferential

qualification of Diploma in Hospital Management issued by

the National Institute of Health and Family Welfare and she

is an assessor for National Accreditation Board for Hospitals

and Healthcare Providers in addition to MBBS and Post

Graduation Diploma in Anesthesiology which is equivalent to

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M.D. Admittedly, the petitioner possesses qualification of

M.D. in Biochemistry. The contention of the learned counsel

for the petitioner that one should possess Post Graduation

i.e., MD, but that need not be clinical or para-clinical subject

cannot be accepted. The qualification of Post Graduation in

Medical Faculty or equivalent qualification should be in

clinical or para-clinical subject, since, the work of RMO

involves interaction with patients and handling of patients

and also administration of the hospitals.

11. 1997 Regulations is placed on record along with memo

dated 14.10.2022. Regulation 7(2)(a)(b) and (c) reads as

follows:

“7(2) The period of 4½ years is divided into three

phases as follows:

(a) Phase-I (two semesters) – consisting of Pre-clinical

subjects (Human Anatomy, Physiology including Bio-
Physics, Bio-chemistry and introduction to Community
Medicine including Humanities). Besides 60 hours for
introduction to Community Medicine including
Humanities, rest of the time shall be somewhat equally
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divided between Anatomy and Physiology plus

Biochemistry combined (Physiology 2/3 & Biochemistry
1/3).

(b) Phase-II (3 semesters) – consisting of para-

clinical/clinical subjects.

During this phase teaching of para-clinical and clinical

subjects shall be done concurrently.
The para-clinical subjects shall consist of Pathology,
Pharmacology, Microbiology, Forensic Medicine
including Toxicology and part of Community Medicine.

The clinical subjects shall consist of all those detailed

below in Phase-III.

Out of the time for Para-clinical teaching approximately

equal time be allotted to Pathology, Pharmacology,
Microbiology and Forensic Medicine and Community
Medicine combined (1/3 Forensic Medicine and 2/3
Community Medicine). See Appencidx-C.

(c) Phase-III (Continuation of study of clinical subjects

for seven semesters after passing Phase-I)

The clinical subjects to be taught during Phase II & III

are Medicine and its allied specialties, Surgery and its
allied specialists, Obstetrics and Gynaecology and
Community Medicine.
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Besides clinical posting as per schedule mentioned

herewith, rest of the teaching hours be divided for
didactic lectures, demonstrations, seminars, group
discussions etc., in various subjects. The time
distribution shall be as per Appendix-C.

The Medicine and its allied specialties training will

include General Medicine, Paediatrics, Tuberculosis and
Chest, Skin and Sexually Transmitted Diseases,
Psychiatry, Radio-diagnosis, Infectious diseases etc.
The Surgery and its allied specialties training will
include General Surgery, Orthopaedic Surgery including
Physio-therapy and Rehabilitation, Ophthalmology,
Otorhinolaryngology, Anaesthesia, Dentistry, Radio-
therapy etc. The Obstetrics & Gynaecology training will
include family medicine, family welfare planning etc.”

The above Regulation makes it clear as to what are the

subjects of pre-clinical, para-clinical or clinical subjects.

Biochemistry is a pre-clinical subject. Therefore, the

qualification of MD in Biochemistry cannot be considered as

clinical or para-clinical. Therefore, I am of the view that the

petitioner would not possess qualification of Post Graduation

in clinical/para-clinical subject. Since, this Court has come

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to the conclusion that the petitioner would not possess basic

qualification i.e., Post Graduation in clinical or para-clinical,

this Court need not go into the question whether the

petitioner possesses 8 years experience or whether experience

should be counted from the date of completion of MBBS or

from the date of completion of Post Graduation.

12. For the reasons stated above, there is no merit in the

writ petition. Accordingly, the petition stands dismissed.

Sd/-
JUDGE

mpk/-*
CT:bms