Dr. Jayakumar and Mercy Sara Thomas v. State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN & THE HONOURABLE SMT. JUSTICE P.V.ASHA TUESDAY, THE 15TH DAY OF MARCH 2016/25TH PHALGUNA, 1937 OP(KAT).No. 5 of 2016 (Z) -------------------------- AGAINST THE ORDER IN OA 1070/2015 of KERALA ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM DATED 27-11-2015 PETITIONER(S): ------------1. DR.JAYAKUMAR WORKING AS MEDICAL OFFICER, GOVERNMENT NATURE CURE HOSPITAL, VARKALA, THIRUVANANTHAPURAM, PIN: 695 141, RESIDING AT SATHYA MAHAL, PALACHIRA P.O., VARKALA, THIRUVANANTHAPURAM, PIN: 695 141. 2. DR.MERCY SARA THOMAS WORKING AS MEDICAL OFFICER, GOVERNMENT NATURE CURE HOSPITAL, VARKALA, THIRUVANANTHAPURAM, PIN: 695 141, RESIDING AT KOTTAKKAL PNRA -9, PONGUMOODU, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM, PIN: 695 141. BY ADV. SRI.K.P.SUJESH KUMAR RESPONDENT(S): -------------1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO THE GOVERNMENT HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001. 2. THE DIRECTOR, INDIAN SYSTEM OF MEDICINE, AROGYA BHAVAN, P.B NO.182, THIRUVANANTHAPURAM, PIN: 695 001. 3. THE DISTRICT MEDICAL OFFICER INDIAN SYSTEMS OF MEDICINE, THIRUVANANTHAPURAM, PIN: 695 001. 4. DR.HARIKUMAR.B. MEDICAL OFFICER, GOVERNEMENT NATURE CURE HOSPITAL, VARKALA, THIRUVANANTHAPURAM, PIN: 695 141. R4 BY ADV. SRI.P.NANDAKUMAR R4 BY ADV. SRI.S.ANEESH R BY GOVERNMENT PLEADER SRI MOHAMED SHAFI THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 15-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(KAT).No. 5 of 2016 (Z) -------------------------- ## **APPENDIX** PETITIONER(S)' EXHIBITS ----------------------- EXT.P1: TRUE COPY OF O.A NO.1070/2015 ON THE FILE OF THE KERALA ADMINISTRATIVE TRIBUNAL, DATED 10/8/2015. EXT.P2: TRUE COPY OF THE REPLY STATEMENT FILED BY THE FIRST RESPONDENT IN OA NO.1070/2015, DATED 29/9/2015. EXT.P3: TRUE COPY OF THE REPLY STATEMENT FILED BY THE PETITIONERS IN OA. NO.1070/2015, DATED 9/7/2015. EXT.P4: TRUE COPY OF THE AMENDED REPLY STATEMENT FILED BY THE PETITIONERS IN OA NO.1070/2015 DATED 22/9/2015. EXT.P5: TRUE COPY OF THE ORDER PASSED BY THE KERALA ADMINISTRATIVE TRIBUNAL IN OA NO.1070/2015, DATED 27/11/2015. RESPONDENT(S)' EXHIBITS ----------------------- EXT.R4(a): TRUE COPY OF LETTER DT.25.7.2013 OF THE DIRECTOR, INDIAN SYSTEMS OF MEDICINES. EXT.R4(b): TRUE COPY OF LETTER DT.2.9.2013 ISSUED BY THE 1ST RESPONDENT. EXT.R4(c): TRUE COPY OF LETTER DT.24.9.2013 OF THE DIRECTOR OF AYURVEDA MEDICAL EDUCATION. EXT.R4(d): TRUE COPY OF LETTER DT.6.3.2015 BY THE PSC. EXT.R4(e): TRUE COPY OF REJOINDER FILED IN THE O.A ALONG WITH ANNEXURE A13. EXT.R4(f): TRUE COPY OF CIRCULAR DT.10.10.2014 ISSUED BY P&ARD. /TRUE COPY/ P.S TO JUDGE **K.SURENDRA MOHAN & P.V ASHA, JJ. ----------------------------------------------------O.P(KAT) No.5 of 2016 ---------------------------------------------------Dated this the 15[th] day of March, 2016** ## **JUDGMENT** ## Asha, J. The petitioners are respondents 4 and 5 in the Original Application (`O.A' for short) No. 1070 of 2015 before the Kerala Administrative Tribunal (hereinafter referred to as the `KAT' for short). The 4[th] respondent herein, who is a Degreeholder in Naturopathy and Yogic Science, filed the O.A claiming that, he is the only qualified hand for promotion to the post of Superintendent in the Department of Naturopathy. The petitioners herein have been working as Medical Officers in the Department of Naturopathy right from 1992 and 1997 and the 4[th] respondent was appointed in the same post only in the year 2007. Both of them are Diploma holders in Naturopathy. They acquired the Diploma after undergoing a 4½ years course in Naturopathy conducted by Gandhi Nature Cure College, Hyderabad. A vacancy of Superintendent in the Department **O.P(KAT) No.5 of 2016** 2 arose on up-gradation of one of the posts of Medical Officers as per Annexure-A7 order dated 05.02.2014. Thereupon the applicant, the 4[th] respondent herein, submitted a representation claiming promotion against that vacancy. He had filed O.A No.124 of 2014, which was disposed of directing the official respondents to consider and pass orders on it. His representation was rejected saying that, the Special Rules are in the process of amendment. It is challenging the orders rejecting his representation that, the 4[th] respondent filed O.A No.1070 of 2015, claiming promotion as Superintendent with effect from the date on which the post was sanctioned in 2014. The qualifications for appointment to the post of Superintendent (Nature Cure) is governed by Annexure-A12 Special Rules for Indian Systems of Medicine (Kerala) Service, 2005, issued on 05.04.2005. The post of Superintendent (Nature Cure) comes under category No.1 in Unit III, Nature Cure Hospital. The method of appointment is by promotion from category no. 2; Senior Medical Officer or in the absence of qualified hands by direct recruitment through PSC. The qualifications prescribed is Degree in Naturopathy and Yogic Sciences from a recognised 3 **O.P(KAT) No.5 of 2016** University in India or any equivalent qualification and 5 years professional experience after acquiring the degree. The 4[th] respondent claimed that he is the only person in the Department who is having qualifications prescribed for promotion as Superintendent and the promotion is being delayed, in order to effect retrospective amendment to the Special Rules and to promote the petitioners herein, who were not qualified in accordance with the Special Rules. 2. The case of the official respondents is that, the Government had by Annexure-A3 order dated 23.10.2013 (part of Ext.P1) declared that, the Diploma in Naturopathy Course (ND) of 4 ½ years conducted by the Gandhi Nature Cure College (now Gandhi Nature Cure Medical College) Hyderabad which was awarded by Osmania University is equivalent to 5 ½ years Degree in Bachelor of Naturopathy and Yogic Science (BNYS). That order was issued on the basis of the order issued by the Government of India, Department of Health Family Welfare on 15.10.2007 (Annex.R1, which is part of Ext.P3), by which the Diploma awarded by Osmania University was declared equivalent to the degree in Naturopathy and Yogic Science **O.P(KAT) No.5 of 2016** 4 (BNYS) Degree. However, the PSC did not grant approval for the same saying that, Special Rules cannot be amended by executive orders. In those circumstances, proceedings were initiated for amending the Special Rules, equating Diploma in Naturopathy course (ND) of 4½ years' duration conducted by Nature Cure College(Now Gandhi Nature Cure Medical College), Hyderabad before 1991 with 5½ years Bachelor of Naturopathy & Yogic Sciences (BNYS) Degree, as per advice of P& ARD and forwarded the proposal for concurrence of PSC as per letter no. 8129/D2/2013/H&FWD dated 30.05.2015. As the proceedings for amendment are pending consideration of PSC, the Government rejected the representation of the 4[th] respondent. However, the amendment is not yet finalised. 3. In these circumstances, the KAT, allowed the O.A filed by the 4[th] respondent and directed the officials to consider him for promotion on the basis of the existing rules. 4. The petitioners herein are challenging the order of the KAT. According to them, they have acquired the Diploma in Naturopathy at a time when none of the Universities in India was conducting a degree course in Naturopathy. They underwent a 5 **O.P(KAT) No.5 of 2016** 4 ½ year course of study in Osmania University and acquired the Diploma. At the time when they were appointed in the years 1992 and 1997, the service conditions, including the qualification and method of appointment to the post of Superintendent, were governed by the Special Rules for Kerala Health Services (Indian System of Medicine), 1981. As per those Rules, the educational qualification prescribed for a Medical Officer, Senior Specialist as well as for Superintendent(Nature Cure) was Doctor of Naturopathy Diploma awarded by Gandhi Nature Cure College, Hyderabad. The new Special Rules were issued in the year 2005. Proceedings for amendment of the Special Rules were initiated seeing that the qualified hands like the petitioners were not protected when new Rules came and also on account of the fact that the Government of India as well as the University from which the petitioners acquired qualification had already issued orders recognising the Diploma in Naturopathy acquired by the petitioners, as equivalent to a Bachelors Degree in Naturopathy. It is pointed out that, the Government of India issued orders recognising the Diploma as Degree as early as in 2005 and the State of Andhra Pradesh had **O.P(KAT) No.5 of 2016** 6 issued orders in 2003. It is also their case that, the Director of Ayush had recommended the Government for issuing orders recognising the Diploma as equivalent to the Degree in Naturopathy. Relying on this order, the learned counsel for the petitioners submits that, the petitioners are fully qualified as they are having the equivalent qualification as provided in the Special Rules. It is their further case that the PSC, when the Government took up the matter for the concurrence of PSC, refused to act upon it saying that, the Special Rules have to be amended. It was in those circumstances that, the Government took steps for amending the Special Rules, which is in progress and awaiting the concurrence of the PSC. It is, in these circumstances, that they are claiming promotion in preference to the 4[th] respondent, who is far junior to them. 5. We heard Sri K.P Sujesh Kumar appearing for the petitioners as well as Sri Nandakumar appearing for the 4[th] respondent and the learned Government Pleader appearing for the official respondents. The only question to be considered in this matter is whether the petitioners are having the qualification for promotion as Superintendent as on the date of occurrence of vacancy. The qualification for promotion to 7 **O.P(KAT) No.5 of 2016** the post of Superintendent is as prescribed in Annexure-A12 Special Rules, which provides as follows: ## - UNIT III NATURE CURE HOSPITAL |Category 1|Superintendent<br>(Nature Cure)|(By promotion/ Direct recruitment| |---|---|---| |||(ii) Degree in Naturopathy awarded by<br>recognised universities in Kerala or<br>equivalent qualification| |||(ii)Professional Experience for 5 years in<br>Naturecare treatment in a Nature cure<br>Clinic/Centre/Institution after obtaining the<br>qualification under item 1 above.| Admittedly, the petitioners are having only a Diploma in Naturopathy. The next question to be considered is whether the Diploma acquired by the petitioners is an equivalent qualification. Claim of the petitioners to treat the Diploma as an equivalent qualification is on the basis of the order issued by the Government of India as well as the order issued by the Government of Andhra Pradesh. Though the petitioners have produced Annexure-A3 order by which the Government of Kerala ordered that, the Diploma (acquired by the petitioner) is an equivalent qualification to the Degree in Naturopathy, the learned counsel for the 4[th] respondent points out that the said order was issued without concurrence of the PSC. It is an ## **O.P(KAT) No.5 of 2016** 8 admitted fact that, the PSC has not approved the Diploma as an equivalent qualification for the post in question. 6. According to Rule 10 of KS&SSR, qualification for a post is as prescribed in the Special Rules in a case where an equivalent qualification is provided and in cases where appointments are made by direct recruitment, consultation with the PSC is necessary. As per Rule 10(a)(i) of the KS&SSR, educational qualification or other qualification required for a post shall be as specified in the Special Rules applicable. Rule 13(b) provides that, a person shall not be appointed to a post unless he possesses the qualification prescribed as per the Special Rules or he possesses such other qualifications as may be considered to be equivalent to the said special qualifications or special posts by the PSC in cases where the appointment has to be made in consultation with it or by the State Government or by the appointing authority with the approval of the State Government in other cases. Therefore, it is for the PSC to issue orders regarding the qualifications which can be treated as equivalent to the special qualifications or special tests prescribed in the Special Rules in a case where the appointment 9 **O.P(KAT) No.5 of 2016** is to be made in consultation with the PSC and where the Special Rules provide for recognition of an equivalent qualification to the one prescribed. However, in cases where appointment can be made without consultation with the PSC, orders as to the equivalent qualification can be issued by the State Government or by the appointing authority with the approval of the State Government. Unfortunately the PSC rejected the proposal for equating Diploma qualification with Degree saying that the rules have to be amended, despite the fact that the Special Rules provide for a qualification equivalent to Bachelors Degree in Naturopathy. 7. Then what is necessary to be looked into is, whether consultation with the PSC is necessary for appointment to the post of Superintendent. As per Annexure-A12 Special Rules, the method of appointment to the post of Superintendent (Naturopathy Cure in Unit 3 – Nature Cure Hospital) is by promotion from categories of Unit 3 and in the absence of a qualified hand for promotion, by direct recruitment. Therefore, it can be seen that for appointment to the post of Superintendent it is necessary to consult the PSC, since one of the methods for 10 **O.P(KAT) No.5 of 2016** appointment is direct recruitment. 8. Admittedly Annexure-A11(a) Draft Rules incorporating Diploma in Naturopathy Course of 4 ½ years duration conducted by Gandhi Naturopathy Medical College, Hyderabad as a qualification has not been finalized so far. 9. KAT has considered the issue raised with reference to the settled legal position that, promotion has to be made in accordance with the rules which are in force as on the date of occurrence of vacancy, as held in the decisions of this Court in **James Mathew v. Chief Justice** [1977 KLT 622] and **Varghese v. State of Kerala** [1981 KLT 458(F.B)] and accordingly, it was found that the petitioners herein, possessing only Diplomas were not qualified for promotion in accordance with the Special Rules in existence. 10. The KAT also found that, on the basis of some proposal to amend the qualification or on the basis of a proposal to treat the Diploma qualification as equivalent to Degree qualification, the administration cannot defer the decision to fill up the vacancy of Superintendent indefinitely. It was under these circumstances that, the KAT set aside Annexures-A10 and 11 **O.P(KAT) No.5 of 2016** A11 orders, by which the request of the 4[th] respondent seeking his promotion was rejected and with a direction to the 1[st] respondent to take a decision regarding promotion to the post of Superintendent in tune with the Special Rules which are in force. 11. In the circumstances of the case, we find that the order of the KAT does not suffer from any infirmity and hence the same warrants no interference. The Original Petition is accordingly dismissed. Sd/- _**K.SURENDRA MOHAN Judge**_ Sd/- _**P.V.ASHA Judge**_ rtr/