State Of Kerala & Anr vs Naveena Prabhu & Ors

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.

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.

(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

Page 3 of 10 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,

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 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

Page 5 of 10 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

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.

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.

Page 7 of 10

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.

Page 8 of 10

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-`-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.

Page 9 of 10 .............................J. (S.B. Sinha)

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

New Delhi, February 23, 2009

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