IN THE SUPREME COURT OF INDIA CIVIL APPELLATE 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  

JUDGMENT

Dr. Mukundakam Sharma, J.

1. Leave granted.

2. These  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.

3. The 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 hereunder :

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 B.”

4. G.O. (Ms) 511/95/H&FWD dated 10.11.1995 issued by the Department

of Health and Family Welfare, Government of Kerala,  provided that the

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system  of  direct  payment  will  be  introduced  in  the  following  three

private  Homoeopathic  Colleges  in  the  State,  subject  to  the conditions

stipulated hereunder :

“1. Athurasramam 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.

(d) Shree  Vidyadhiraja  Homeopathic  College  shall  obtain  recognition from University of Kerala as a Precondition for implementation of the ‘‘direct payment system’’”

5. The  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

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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.

Consequently, on 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.

The Government 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 hereinbelow :

“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

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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.   

Government have 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.”

6. By 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.

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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 State Government.

7. 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.  

8. Being 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

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preferred  the  present  appeals  on  which  we  have  heard  the  learned

counsel appearing for the parties.

9. 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.

10.Mr.  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

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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 college.  

11.Mr. 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

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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.

12.In 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 follows :  

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.

2.  Permanent Registration under the Medical Council”.

13.The  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’).

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14.The Act of 1953 and the Rules made thereunder 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 as follows:

“15. Rights 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 Homoeopathy.

(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 :

“23. Eligibility 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

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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 force.”

16.Section 27 of the Act is also relevant and, therefore, the said provision is

also quoted below :

“27. 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 previously made.”

17.The  Central  Council  of  Homoeopathy  (Minimum  Standards  of

Education) Regulations, 1983 prescribes the qualification for the post of

Demonstrator/Tutor as under :

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“A. (i) A recognized diploma after 4 years study or a degree  in Homoeopathy.

OR

(ii)  A degree in modern medicine.

Preferential qualification :   (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 Hospital.”

18.  On 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

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prescribed for the post of tutor, namely, permanent registration under the

Medical Council.   

19.Be 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.   

20.Therefore, 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.

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21.Accordingly, these appeals are dismissed.

       ………………………..J.                                (S.B. Sinha)

   ..………………………J.                (Dr. Mukundakam Sharma)

New Delhi, February 23, 2009

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