IN THE SUPREME COURT OF INDIA CIVIL APPELLATE 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  

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 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.

3. 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.  

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

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.   

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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.  100/2000/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

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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 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,

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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.”   

6. By  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.

7. The 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

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hospital staff who are respondents herein should also be brought under

the ‘direct payment system’ with effect from 1.1.2000.   

8. State  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.

9. We 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

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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.  

10.Subsequent 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 hospital.   

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11.The  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.   

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12.It 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.   

13.Our 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-à-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 implications.   

14.Considering 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.

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

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

New Delhi, February 23, 2009

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