H.C. SHIVA KUMAR Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) HEARD the learned counsel for the petitioner and the learned counsel for the respondents. The facts of the case are as follows:

(2.) 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: