State of Kerala &
ANR. Vs. Mahesh Kumar & Ors.  INSC 393 (23 February 2009)
JURISDICTION CIVIL APPEAL NO.1147-1151 OF 2009 (arising out of SLP (C) Nos.
19361-19365 of 2005) State of Kerala & Anr. ...Appellants Versus Mahesh
Kumar & Ors. ...Respondents
appeals filed by the State of Kerala are directed against the judgment and
order dated 3.6.2005 passed by the Division Bench of the High Court of Kerala
at Ernakulam affirming the order dated 15.9.2004 of the learned Single Judge of
the same High Court.
relevant facts for disposal of the appeals are as under:
Dr. Padiar Memorial
Homoeopathic Medical College, Chottanikkara (hereinafter referred to as `Padiar
Medical College') is a private college established in the year 1920 and
governed by its Board of Trustees. On 30.12.1998 a decision in consultation
with the Government of Kerala, was taken by the management of the college to
introduce the `direct payment system'. At that time there were only 31 teaching
staff and 20 non teaching staff. Consequent thereupon the management appointed
45 non-teaching staff and 21 teaching staff by letter dated 2.1.1999. On
24.1.2000, an agreement was executed between the Government of Kerala and the
Governing Body of the College for bringing the said college under the `direct
payment system' w.e.f. 1.1.2000. It was decided that all the members of the
teaching staff who have not got themselves registered under Rule 49 of the
Travancore-Cochin Medical Practitioners Rules (in short the `Rules') cannot
avail of the benefit of the `direct payment system'. Rule 49 is extracted
Rule 49 of the
Travancore-Cochin Medical Practitioners Rule "49. Every person whose name
has been entered in the Register shall be entitled to receive from the
Registrar a certificate of Registration. Such certificate shall set forth the
full name of the person registered, his designation, his address, the date and
place of registration and the qualifications in respect of which he has been
registered. Such certificate shall be in Form I as laid down in Appendix
(Ms) 511/95/H&FWD dated 10.11.1995 issued by the Department of Health and
Family Welfare, Government of Kerala, provided that the Page 2 of 14 system of
direct payment will be introduced in the following three private Homoeopathic
Colleges in the State, subject to the conditions stipulated hereunder :
Nair Service Society Homeopathic Medical College, Kurichy, Kottayam
2. Dr. Padiyar
Memorial Homoeopathic Medical College, Chottanikara.
3. Sir Vidadhiraja
Homeopathic Medical College, Nemom, Thiruvananthapuram Conditions :
(a) Direct payment of
salary will take effect from 01.11.1995 (b) All these private Homeopathic
Colleges will enter into agreements with the Government to the effect that in
respect of appointments of Staff and enrollment of students, they will abide by
terms and conditions similar to those adopted in respect of private Engineering
Colleges in the State.
(c) Dr. Padiyar
Memorial Homeopathic College will not claim any Special rights of a Minority
Institutions or of a self-financing institution.
Vidyadhiraja Homeopathic College shall obtain recognition from University of
Kerala as a Precondition for implementation of the ``direct payment
Government Order G.O.(MS) No. 100/2000ds)H&FWD dated 25.4.2000 was issued
regarding the introduction of `direct payment system' with effect from 1.1.2000
which, inter alia, provided that `direct payment system' can be introduced in
the Padiar Memorial Homeo College, allowing the management to fill up 15% seat
for BHMS as is being enjoyed by the NSS Homeo College, Kurichy if they executed
an agreement to this effect as provided in the conditions stipulated in the
aforesaid Government order dated 10.11.1995. This Government order authorised
the Senior Principal & Controlling Officer for Homoeopathic Education to
take necessary action for making the staff fixation.
16.11.2001 he sent a list of 40 teaching and 50 non- teaching staff having
qualification according to the government rules as on 1.1.2000 and considering
the department seniority for staff fixation.
accepted and approved the said list as per Government Order G.O. (MS) No.
99/02/ H&FWD dated 25.4.2002 relevant portion of which is reproduced
"In the G.O.
read above, direct payment system was introduced in the Dr. Padiar Memorial
Homoeopathic Medical College, Chottanikkara, with effect from 01.01.2000,
subject to the conditions set out in the agreement entered into between
Government and the Management of the College. It was stipulated therein that
until fixation of staff strength and approval of salary are done, members of
the staff in the college will be paid pay and allowances at the approval rate
at which they were drawing their pay for the month of December, 1999.
As per the agreement
entered into between Government and the amendment of the College on 24.01.2000,
Government are liable to disburse the pay and allowances due to the staff of
the college which accrue from 01.01.2000 directly through the Principal of the
Institution based on the existing staff pattern of the Government Homoeopathic
Medical College and the hospitals attached therewith. As per the direction of
the High Court in the judgment dated 19.07.2001 in WA No. 2255/00 in OP No.
19111/00 filed by Dr. Renjini N. Menon, final orders in the matter have to be
issued within the period of 3 months from the date of receipt of a copy of the
judgment. Accordingly as directed by the Government, the Principal and
Controlling Officer, Government Homoeo Medical College, Thiruvananthapuram,
furnished the list of 40 senior most and qualified teaching staff based on
departmental seniority and 50 non-teaching staff of the Dr. Padiar Memorial
Homoeo Medical College as on 01.01.2000 to be considered for staff fixation.
examined the matter in detail and are pleased to approve the staff pattern
consisting of 40 senior most and qualified teaching staff and 50 non-teaching
staff of Dr. Padiar Memorial Homoeopathic Medical College, Chottanikara, as on
01.01.2000 as detailed in Annexure I & II of this order. The Principal and
Controlling Officer, Government Homeo Medical College, Thiruvananthapuram will
fix the pay and allowances of the above staff due to their respective post with
effect from 01.01.2000."
the aforesaid Government order dated 25.4.2002 the Government had provided that
`direct payment system' would be introduced in Padiar Medical College with
effect from 1.1.2000. However, the entire staff belonging to the college would
not have come to be entitled to the benefit of direct payment, since the staff
pattern consisting of 40 senior most and qualified teaching staff and 50
non-teaching staff alone was to be recognized as eligible for the said benefit.
The resultant position was that 8 persons (respondents herein), working as
faculty members i.e. teaching staff, were not to get recognition or payment.
They challenged their exclusion from the list of approved members of the
teaching staff as on 1.1.2000 by approaching the High Court complaining that
the Government order dated 25.4.2002 subjected them to prejudice and
discrimination. The challenge was upheld and the appeals have been filed by the
learned Single Judge of the High Court, by its order dated 15.9.2004, allowed
the petitions filed by the respondents and quashed the said government order
dated 25.4.2002 to the extent it has excluded the respondents from the list of
qualified teaching staff as on 1.1.2000 while including those teachers who are
juniors to the respondents and directed the Government of Kerala to include the
respondents at the appropriate place in the list on the basis of their
seniority thereby entitling them for the salary in the pay scale made
applicable under the `direct payment system'. This order of the learned Single
Judge was affirmed by the impugned judgment of the High Court.
aggrieved by both the orders passed by the learned Single Judge as also the
Division Bench of the Kerala High Court, the State of Kerala preferred the
present appeals on which we have heard the learned counsel appearing for the
Government as per Government Order G.O. (MS) No. 99/02/ H&FWD dated
25.4.2002 accepted and approved the staff fixation list sent by the Senior
Principal & Controlling Officer but while doing so it limited the number of
teaching staff to 40 instead of 48 which comprises of the total number of
teachers and thereby the balance 8 were ordered to be kept out of the said
benefit with the direction that they would not come within the purview of
``direct payment system''. Therefore, the issue that falls for consideration in
these appeals is whether the said remaining 8 respondents were qualified to get
the said benefit along with remaining 40 who have been granted such benefit.
C.S. Rajan, learned senior counsel appearing for the appellants submitted that
the High Court failed to appreciate that the management made appointments by
letter dated 2.1.1999 against Rules and also against the agreement which was
entered into by the Governing Body of the College Management with the
Government with regard to introducing the `direct payment system' as the
Management did not take consent for the appointments made after the decision of
the Government Page 7 of 14 to introduce `direct payment system'. He also
submitted that none of the aforesaid remaining 8 respondents have got their
degrees registered under the Travancore-Cochin Medical Council (hereinafter
referred to as the `Medical Council') as on 1.1.2000 which was an essential
qualification and as such they are disqualified for the post of tutor as on 1.1.2000
and consequently they were not included in the list for `direct payment
system'. He further submitted that as the said 8 respondents were not having
permanent registration under the Medical Council on the relevant date i.e. on
1.1.2000, they were not entitled to be appointed as teaching staff in the
R. Rajendran Nair, learned counsel appearing for the respondents, however,
refuted the aforesaid allegations and supported the judgments passed by both
the learned Single Judge as also by the Division Bench of the High Court which
concluded that the respondents were fully qualified to be included in the staff
fixation list as on 1.1.2000. He submitted that Rule 49 of the Rules does not
contemplate fresh registration on acquiring additional qualification and that
the aforesaid 8 respondents acquired registration under Travancore-Cochin
Medical Council in 1992 itself when they passed Diploma in Homoeopathy. He
further submitted that the said 8 respondents also possessed Diploma in Page 8
of 14 Homoeopathic Medicine and Surgery which is a recognized medical
qualification already included in the Second schedule and, therefore, their
original/initial registration with the Medical Council is a valid one.
the light of the aforesaid submissions we have carefully examined the records.
As per G.O. (Ms.) No. 255/84/HD dated 11.10.1984, the qualifications prescribed
for the post of tutor in the Government Homeopathic Medical College are as
1. A Degree in
Homoeopathy from a recognized University in India or a recognized Homoeopathic
Diploma with M.B.B.S. qualification or Dip. N.I.H. awarded by the National
Institute of Homoeopathy, Calcutta.
Registration under the Medical Council".
Central Council of Homoeopathy (Minimum Standards of Education) Regulations,
1983 provides for a minimum strength of teaching staff which was essential for
a college offering degree course.
On the other hand,
Rule 49 of the Rules does not contemplate fresh registration on acquiring
additional qualification. The said rules were made in terms of the rule making
power as provided for in the Travancore-Cochin Medical Practitioners Act, 1953
(for short the `Act').
Act of 1953 and the Rules made there under are the State enactments governing
the field of registration of Medical Practitioners in the State.
There is a Central
Act called the Homoeopathy Central Council Act, 1973. Section 15 thereof reads
of persons possessing qualifications included in the second or the third
schedule to be enrolled :
(1) Subject to the
other provisions contained in this Act, any medical qualification included in
the Second or the Third Schedule shall be sufficient qualification for
enrolment on any State Register of Homoeopathy.
(2) No person, other
than a practitioner of Homoeopathy who possesses a recognized medical
qualification and is enrolled on a State Register or the Central Register of
(a) Shall hold office
as Homoeopathic physician or any other office (by whatever designation called)
in Government or in any institution maintained by a local or other authority ;
(b) Shall practice
Homoeopathy in any State ;......"
15.Section 23 of the
Act prescribes the eligibility for registration. It stated thus :
for registration : (1) Subject to the provisions of sub section (2) and (5) :-
i. Every holder of a recognized qualification and every practitioner holding
appointment under the Government at the commencement of this Act and ii. Every
person who, within the period of one year or such other longer period as may be
fixed by the Government from the date on which this Act come into force, prove
to the satisfaction of the appropriate council that he has been in regular
practice as a practitioner for a period of not less than five years preceding
the first day of April, 1953. Shall be eligible for registration under this
Act. Provided, however, that no practitioner shall be registered under clause
(ii) after the expiration of one year, or such other longer period as may be
fixed by the government, from the date on which this Act comes into
27 of the Act is also relevant and, therefore, the said provision is also
quoted below :
Registration of additional qualifications.
(1) If any person
whose name is entered in the Central Register of Homoeopathy obtain any title,
diploma or other qualification for proficiency in Homoeopathy, which is a
recognized medical qualification, he shall, on application made in this behalf
in the prescribed manner, be entitled to have any entry stating such other
title, diploma or other qualification made against his name in the Central
Register of Homoeopathy either in substitution for or in addition to any entry
Central Council of Homoeopathy (Minimum Standards of Education) Regulations,
1983 prescribes the qualification for the post of Demonstrator/Tutor as under :
Page 11 of 14
"A. (i) A recognized diploma after 4 years study or a degree in Homoeopathy.
OR (ii) A degree in
(A) Having both a
recognized diploma or a degree in Homoeopathy and qualification included in the
III Schedule of the Homoeopathy Central Council Act, 1973.
OR M.D. or M.S. or
Post Graduate diploma or Degree in the subject concerned.
(B) Experience of
working at any State Homoeopathic Dispensary, Government Homoeopathic
Dispensary at any recognized Homoeopathic or Allopathic College and
a careful reading of the aforesaid provisions of the statute it appears to us
that every holder of recognized qualification is eligible for registration
under the Medical Council. The aforesaid remaining 8 respondents are also,
therefore, eligible to get the benefit of `direct payment system'. The
registration granted by the Medical Council on the basis of recognized
qualification fully satisfied the qualification Page 12 of 14 prescribed for
the post of tutor, namely, permanent registration under the Medical Council.
that as it may, without entering into the controversy raised by the parties
hereto, when 40 teaching and 50 non-teaching staff have been brought within the
purview of the `direct payment system' by the appellant, we see no
justification as to why only the remaining 8 persons should be deprived from
getting the same benefit. When the State Government has accepted the
responsibility with regard to the aforesaid 40 teaching and 50 non-teaching
staff, the remaining 8 who are otherwise qualified and have the registration
should not be discriminated upon for we feel that they should also get the
similar benefits as are being given to other 40 persons.
in the peculiar facts and circumstances of this case, we direct that the
aforesaid remaining 8 persons be also given the same benefit as has been given
to 40 teaching and 50 non-teaching staff and they shall be so accommodated in
terms of their seniority. We, however, make it clear that this order is made in
the peculiar facts and circumstances of this case and would not, therefore, be
treated as a precedent in any other matter.
these appeals are dismissed.