State of Kerala &
ANR. Vs. Naveena Prabhu & Ors.  INSC 394 (23 February 2009)
JURISDICTION CIVIL APPEAL NO.1152-1153 OF 2009 (arising out of SLP (C) Nos.
19951-19952 of 2005) State of Kerala & Anr. ...Appellants Versus Naveena
Prabhu & Ors. ...Respondents
appeals filed by the State of Kerala are directed against the judgment and
order dated 17.6.2005 passed by the Division Bench of the High Court of Kerala
at Ernakulam whereby not only order dated 3.3.2004 of the learned Single Judge
of the same High Court was upheld and the writ petition was held to have been
rightly allowed by the learned Single Judge.
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.
(Ms) 511/95/H&FWD dated 10.11.1995 issued by the Department of Health and
Family Welfare, Government of Kerala, provided that the 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.
Page 2 of 10
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 system"
Government Order G.O.(MS) No. 100/2000/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, Page 4 of 10
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
the aforesaid Government order dated 25.4.2002 the Government 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 did not become
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.
private respondents herein are the hospital staff and they sought a direction
from the High Court in the writ petitions filed by them that they should also
be brought under the direct payment system with effect from 1.1.2000. The
contention raised by them was that they are similarly situated being a part of
the medical college and, therefore, they are entitled to be brought within the
purview of direct payment system.
This contention found
favour with the learned Single Judge who heard the writ petition and the
learned Single Judge by his judgment and order dated 3.3.2004 allowed the writ
petition with a direction that the said hospital staff who are respondents
herein should also be brought under the `direct payment system' with effect
of Kerala being aggrieved by the aforesaid judgment and order filed an appeal
before the Division Bench of the Kerala High Court which was dismissed and
consequently the present appeals are filed in this Court.
have heard the learned counsel appearing for the parties in respect of all the
contentions raised before us. There is no dispute with regard to the fact that
Padiar Medical College is a private medical college. The Health and Family
Welfare Department, Government of Kerala issued an order G.O. (MS) No.
100/2000/H&FWD dated 25.4.2000 pursuant to an agreement entered into
between the Government and the President of the Padiar Medical College. In the
said order, the Government has, inter alia, stated that they have examined the
matter in detail with regard to the introduction of `direct payment system' in
Padiyar Medical College and that they have advised that `direct payment system'
could be introduced in Padiar Memorial Homeo College allowing the management to
fill up 15% seat for BHMS as is being enjoyed by NSS Homeo College, Kurichy if
they executed an agreement to that effect. By the said order Page 6 of 10 the
Government issued directions for introducing `direct payment system' in Padiar
Medical College with effect from 1.1.2000 subject to the conditions set out in
the agreement and also subject to further condition that selection of
candidates for admission to the institution against 85% of the sanctioned
strength in each institution would be made by the Government or by such
authority as may be appointed by the Government for the purpose. It was also
stipulated that for the remaining 15% of the seats, candidates would be
selected by the Educational Agency from a list of eligible candidates prepared by
the Controller of Entrance Examination on the basis of the entrance examination
conducted for the purpose.
thereto another order G.O.(Rt) 517/2001/H&FWD came to be issued on
20.3.2001 by the Health & Family Welfare Department, Government of Kerala
reiterating its earlier order that until fixation of staff strength etc. the
members of the staff in Padiar Medical College would be paid salary and
allowance at the approved rate at which they were drawing their pay for the
month of December, 1999. However, in the said order it was made clear that the
order would not be applicable to the staff of the hospital attached to the
college as the `direct payment system' has not been introduced in the college
aforesaid order, therefore, makes it crystal clear that while introducing the
direct payment system by the Government in respect of Padiar Medical College,
such benefit was extended to the members of the staff of the college whereas
the staff of the hospital attached to the college was specifically excluded
from the applicability of the aforesaid benefit. This order was never
challenged by any of the respondents herein since such benefit of direct
payment system was not extended to the staff of the hospital attached to the
college. They did not acquire any status and consequently they acquired no
right being specifically excluded from the benefit thereof. The decision of the
Government to exclude the staff of the hospital attached to the college from
the purview of the aforesaid orders was made specifically stating that direct
payment system is not introduced by the Government so far as college hospital
is concerned. The same being a policy decision of the Government and having not
been challenged as either arbitrary or discriminatory at any stage by the
respondents, thus we are not called upon to scrutinize the legality and
validity of the aforesaid decision. Besides, the same being a policy decision
of the Government, the same stands as this Court generally does not interfere
with the policy decision of the Government.
was one of the contentions of the respondents that the nature of duties and
responsibilities of the teaching staff of the college and the staff of the
hospital being the same there can be no discrimination so far as the staff of
the hospital is concerned. It is true that the teaching staff of the college as
also non-teaching staff are being given the benefit of direct payment system
but that itself would not entitle or make the staff of the hospital eligible to
claim the said benefit.
attention could not be drawn to the fact that there is any assessment by any
authority with regard to the nature of duties and responsibilities discharged
by the teaching and non-teaching staff of the college vis-`-vis the staff of
the hospital. Without going into the technicalities, it could also be said that
nature of duties and responsibilities in the college would be distinctly
different and separate from that of the duties and responsibilities of the
staff in the hospital attached to the college. This Court also cannot issue any
direction for over inclusion of the staff as it involves financial
the entire facts and circumstances of the case we find merit in these appeals
and the same are accordingly allowed. The writ petitions stand dismissed.