Ganesh Rao M.S. & Santhosh Kumar.P v. V. Radhakrishna Shenoy, Dr. Padiyar Memorial Homoeopathic Medical College & Others (Writ Appeal No. 652 of 2013; connected WP(C) Nos. 22001/2010, 24978/2008, 24369/2010, 26017/2010)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE ANTONY DOMINIC** **& THE HONOURABLE MRS. JUSTICE SHIRCY V.** **THURSDAY, THE 24TH DAY OF NOVEMBER 2016/3RD AGRAHAYANA, 1938** **WA.No. 652 of 2013 () IN WP(C).22001/2010** **-------------------------------------------** **AGAINST THE ORDER/JUDGMENT IN WP(C) 22001/2010 of HIGH COURT OF KERALA DATED 03-01-2012** **APPELLANTS/NOT PARTIES IN WP(C):** **---------------------------------** **1. GANESH RAO.M.S. AGED 33 YERS, S/O.SREEDHARA SHENOY, MALIYEKKAL HOUSE,PATTANAKKAD.P.O,CHERTHALA.** **2. SANTHOSH KUMAR.P, AGED 43 YEARS, S/O.RAMAKRISHNA PRABHU,PANAKKAL HOUSE,PARAYAKADU.P.O.** **BY ADV. SRI.SAJEEV KUMAR K.GOPAL** ## **RESPONDENTS/PETITIONER/RESPONDENTS IN WP(C):** **----------------------------------------------** **1. V.RADHAKRISHNA SHENOY DR.PADIAR MEMORIAL HOMOEOPATHIC MEDICAL COLLEGE, BOARD OF TRUSTEE,CHOTTANIKKARA,PIN-682312.** **2. THE STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY,GOVERNMENT OF KERALA,SECRETARIAT,THIRUVANANTHAPURAM-695001.** **3. THE SECRETARY TO GOVERNMENT OF KERALA, DEPARTMENT OF HEALTH & FAMILY WELFARE,SECRETARIAT, THIRUVANANTHAPURAM-695001.** **4. THE PRINCIPAL & CONTROLLING OFFICER, GOVERNMENT HOMOEO MEDICAL COLLEGE,THIRUVANANTHAPURAM, PIN-695001.** **5. DR.PADIAR MEMORIAL HOMOEOPATHIC MEDICAL COLLEGE, REPRESENTED BY ITS SECRETARY,BOARD OF TRUSTEE, CHOTTANIKKARA,PIN-682312. (THE ADDRESS OF R5 CORRECTED AS SECRETARY, BOARD OF TRUSTEES, DR.PADIYAR MEMORIAL HOMOEOPATHIC MEDICAL COLLEGE, CHOTTANIKKARA AS PER ORDER DATED 07/02/2014 IN IA 112/2014)** **WA.No. 652 of 2013** **--2-** **Addl. 6. THE MAHATMA GANDHI UNIVERSITY PRIYADARSHINI HILLS.P.O., KOTTAYAM - 686 560, REPRESENTED BY ITS REGISTRAR.** **Addl. 7. THE DIRECTOR OF COLLEGIATE EDUCATION GOVERNMENT OF KERALA, 6TH FLOOR, VIKAS BHAVAN, VIKAS BHAVAN.P.O., THIRUVANANTHAPURAM - 695 033.** **(ADDL. R6 AND R7 ARE IMPLEADED AS ADDITIONAL RESPONDENTS R6 &R7 IN WRIT APPEAL AS PER ORDER DATED 7.2.2014 IN I.A. NO.111/2014.)** **Addl. 8. SMT.S.N.SOBHA , AGED 54 YEARS, W/O.SADASIVA SHENOY, L.D.TYPIST (UNDER SUSPENSION), DR.PADIYAR MEMORIAL HOMEOPATHIC MEDICAL COLLEGE, CHOTTANIKKARA, ERNAKULAM, RESIDING AT SHIVAPARAMBIL KOLARICKKAL HOUSE, KARANAKODAM, THAMMANAM.P.O., KOCHI -32.** **(IMPLEADED AS ADDITIONAL RESPONDENT 8 IN WRIT APPEAL AS PER ORDER DATED 10.3.2014 IN I.A. NO.261/2014)** ## **(ADDL. R9 TO R36 IMPLEADED)** **Addl. R9. G.KRISHNAKUMAR S/O.LATE N.GOPALAKRISHNAN NAIR, KALLARATHAKAKKAL PUTHEN VEEDU, KAITHOORKONAM, EDACODE, NEMOM.P.O., THIRUVANANTHAPURAM-20.** **Addl. 10. K.ANIL KUMAR S/O.N.KOHUKRISHNAN NAIR, MAKAM, NANCHALLOOR, AMACHAAL.P.O., KATTAKKADA, THIRUVANANTHAPURAM -72. Addl. 11. SINDHUPRIYA..L.R. D/O.RAMACHANDRAN NAIR, L.D.CLERK, SHREE VIDYADHIRAJA HOMOEOPATHIC MEDICAL COLLEGE, NEMOM, THIRUVANANTHAPURAM -20.** **Addl. 12. LEKHA .G.NAIR W/O.R.VENUGOPAL, L.D.CLERK, SHREE VIDYADHIRAJA HOMOEOPATHIC MEDICAL COLLEGE, NEMOM, THIRUVANANTHAPURAM -20.** **Addl. 13. SANGEETHA.G.S. W/O.SREERAJ, L.D.CLERK, SHREE VIDYADHIRAJA HOMOEOPATHIC MEDICAL COLLEGE, NEMOM, THIRUVANANTHAPURAM -20.** **Addl. 14. H.GENESAN S/O.HARIHARA IYER, NURSING ASSISTANT, SHREE VIDYADHIRAJA HOMOEOPATHIC MEDICAL COLLEGE, NEMOM, THIRUVANANTHAPURAM -20.** **WA.No. 652 of 2013** **-3-** ## **Addl. 15. O.GIRIJAKUMARI** **LAB ATTENDER, SHREE VIDYADHIRAJA HOMOEOPATHIC MEDICAL COLLEGE, NEMOM, THIRUVANANTHAPURAM -20.** **Addl. 16. V.S.VEETHADEVI LAB ATTENDER, SHREE VIDYADHIRAJA HOMOEOPATHIC MEDICAL COLLEGE, NEMOM, THIRUVANANTHAPURAM -20.** **Addl. 17. ANJALEEDEVI.R.M.** **L.D.CLERK, SHREE VIDYADHIRAJA HOMOEOPATHIC MEDICAL COLLEGE, NEMOM, THIRUVANANTHAPURAM -20.** **Addl. 18. LEENA.S.L. L.D.CLERK (REGISTRATION CLERK), S.L.NIVAS, KALLUVETTANKUZHI, VENGANNOOR.P.O., THIRUVANANTHAPURAM -23.** **Addl. 19. B.R.BINSHAH** **LAB TECHNICIAN, SHREE VIDYADHIRAJA HOMOEOPATHIC MEDICAL COLLEGE, NEMOM, THIRUVANANTHAPURAM -20** **Addl. 20. INDULEKHA.B. LAB ATTENDER, SHREE VIDYADHIRAJA HOMOEOPATHIC MEDICAL COLLEGE, NEMOM, THIRUVANANTHAPURAM -20.** - **Addl. 21. V.AJITHAKUMARI SWEEPER, SHREE VIDYADHIRAJA HOMOEOPATHIC MEDICAL COLLEGE, NEMOM, THIRUVANANTHAPURAM -20.** **Addl. 22. SREEKALA.L. L.D.CLERK, SHREE VIDYADHIRAJA HOMOEOPATHIC MEDICAL COLLEGE, NEMOM, THIRUVANANTHAPURAM -20.** **Addl. 23. P.OMANA SWEEPER, SHREE VIDYADHIRAJA HOMOEOPATHIC MEDICAL COLLEGE, NEMOM, THIRUVANANTHAPURAM -20.** **Addl. 24. C.VINAYAKUMAR SPECIMEN COLLECTOR, SHREE VIDYADHIRAJA HOMOEOPATHIC MEDICAL COLLEGE, NEMOM, THIRUVANANTHAPURAM -20.** **Addl. 25. GAYATHRI.A.S. L.D.CLERK, SHREE VIDYADHIRAJA HOMOEOPATHIC MEDICAL COLLEGE, NEMOM, THIRUVANANTHAPURAM -20.** **Addl. 26. M.GOPALAKRISHNAN NAIR L.D.CLERK, SHREE VIDYADHIRAJA HOMOEOPATHIC MEDICAL COLLEGE, NEMOM, THIRUVANANTHAPURAM -20.** - **Addl. 27 . P.B.SREENI** **L.D.CLERK, SHREE VIDYADHIRAJA HOMOEOPATHIC MEDICAL COLLEGE, NEMOM, THIRUVANANTHAPURAM -20.** **Addl. 28. MANJU.S. SWEEPER, SHREE VIDYADHIRAJA HOMOEOPATHIC MEDICAL COLLEGE, NEMOM, THIRUVANANTHAPURAM -20.** **WA.No. 652 of 2013** **-4-** **Addl. 29. RESMI.M.R. L.D.CLERK,SHREE VIDYADHIRAJA HOMOEOPATHIC MEDICAL COLLEGE, NEMOM, THIRUVANANTHAPURAM -20.** ## **Addl. 30. GIRISH KUMAR.B.** **SPECIMEN COLLECTOR, SHREE VIDYADHIRAJA HOMOEOPATHIC MEDICAL COLLEGE, NEMOM, THIRUVANANTHAPURAM -20.** **Addl. 31. B.SREELATHA** **L.D.CLERK, SHREE VIDYADHIRAJA HOMOEOPATHIC MEDICAL COLLEGE, NEMOM, THIRUVANANTHAPURAM -20.** **Addl. 32. A.SASIKUMAR** **DISPENCER,SHREE VIDYADHIRAJA HOMOEOPATHIC MEDICAL COLLEGE, NEMOM, THIRUVANANTHAPURAM -20.** ## **Addl. 33.** **PRABEENA.C.V.** **NURSE, SHREE VIDYADHIRAJA HOMOEOPATHIC MEDICAL COLLEGE, NEMOM, THIRUVANANTHAPURAM -20.** **Addl. 34. UMA.S.** **NURSE, T.C.41/1665, SREEKRISHNA, MANACAUD.P.O., THIRUVANANTHAPURAM -9.** **Addl. 35. SREEDEVI.V.R. NURSING ASSISTANT, SHREE VIDYADHIRAJA HOMOEOPATHIC MEDICAL COLLEGE, NEMOM, THIRUVANANTHAPURAM -20.** ## **Addl. 36. SAJAN.K.V.** **S/O.K.K.VISWAN, KALLATTUVELI, KAYIPPURAM, MUHAMMA.P.O., ALAPUZHA -25.** **(IMPLEADED AS ADDL. R9 TO R36 IN WRIT APPEAL AS PER ORDER DTD 7.8.2014 IN I.A 513/2014)** **R1 BY ADV. SRI.KAPPILLIL ANILKUMAR R6 BY ADV. DR.P.LEELAKRISHNAN, SC, M.G.UNIVERSITY R5 BY ADV. SMT.R.RANJINI** **R8 BY ADV. SRI.BENNY GERVACIS** **R2-R4 BY ADV. GOVERNMENT PLEADER P.N SANTHOSH RADDL.8 -R 36 BY ADV. SRI.K.JAJU BABU (SR.) RADDL.8 -R 36 BY ADV. SMT.M.U.VIJAYALAKSHMI R6 BY ADV. SRI.VARUGHESE M.EASO, SC, M.G.UNIVERSITY R6 BY ADV. SRI.VIVEK VARGHESE P.J., SC, M.G.UNIVERSITY R6 BY ADV. SRI.ASOK M. CHERIAN, SC, M.G. UNIVERSITY R BY SRI.VARUGHESE M.EASO, SC, M.G. UNIVERSITY** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 24-11-2016, ALONG WITH WA. 1028/2014 AND CON CASES ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.A NO.652/2013** ## **APPENDIX** ## **PETITIONERS ANNEXURES** **ANNEXURE 1 COPY OF THE ORDER G.O(MS)NO.99/2013/H&FWD PASSED BY THE 2ND RESPONDENT DATED 22.3.2013** **RESPONDENTS ANNEXURES NIL** **TRUE COPY'** **P.A TO JUDGE** ## **SMM** ## **ANTONY DOMINIC & SHIRCY.V,JJ** ## **-----------------------------------** ## **W.A.Nos.652 of 2013, 1028, 1029 & 1309 of 2014** **-----------------------------------------------Dated this the 24[th] day of November, 2016** ## **JUDGMENT** ## Antony Dominic,J All these appeals are filed against the judgment in Writ Petition Nos.22001/2010, 24978/2008, 24369 of 2010 and 26017 of 2010 and are filed by persons who are not parties to the writ petition. Since the writ petitions were disposed of by a common judgment and as the issues are connected, we heard these cases together and are disposing of the appeals by this common judgment treating W.A.No.652/2013 as the main case. 2. W.A.No.652 of 2013 is filed against the judgment in W.P(C)No.22001/2010. The said writ petition was filed by the first respondent herein. The first respondent was a Junior Superintendent in the Dr.Padiyar Memorial Homoeopathic Medical College, Chottanikkara. The said W.A.Nos.652 of 2013, 1028, 1029 & 1309 of 2014 2 college was a Grand Aid College and Direct Payment System was introduced in the college with effect from 1.1.2000. Ext.P5 is the agreement dated 24.1.2000 that was entered into between the government and the college introducing Direct Payment System. Clause 11(2) of the agreement authorised the government to determine categories of officers and employees coming under the term 'non teaching staff' and the decision of the government is agreed to be final and legally binding on the Educational Agency. 3. In the purported exercise of this power, the government issued Ext.P9 order dated 25.4.2002, whereby the staff strength in the college was fixed, consisting of 40 teaching staff and 50 non teaching staff. The details of the staff are given in Annexure 1 and 2 to this Government Order. It is seen that the first respondent's name is shown at Sr.No.2 as a Lower Division Clerk. 4. According to him, in 1981 he was appointed as W.A.Nos.652 of 2013, 1028, 1029 & 1309 of 2014 3 a Cashier cum Clerk and by Ext.P2 order dated 10.12.1982 his probation was declared. By Ext.P3 order 31.8.1980, he was promoted as a Upper Division Clerk and was again promoted as Junior Superintendent by Ext.P4 order dated 1.12.1999. Complaining that despite his being a Junior Superintendent, he was fixed as a Lower Division Clerk in Ext.P9, he submitted representation. The representation submitted was rejected by Ext.P14 Government Order. Pursuant to the directions of this Court in Ext.P15, the matter was again considered by the government and his claim was rejected by Ext.P21. It was in these circumstances, the first respondent filed the writ petition seeking to quash Exts.P9, P14 and P21 and seeking consequential reliefs entitling him for fixation and continuance as Junior Superintendent itself. 5. In so far as Writ Appeal No.1028/2014 arising out of the judgment in 24369/2010 is concerned, the grievance of W.A.Nos.652 of 2013, 1028, 1029 & 1309 of 2014 4 the petitioner therein was that though he was an Upper Division Clerk, in Ext.P9 Government Order mentioned above, he was fixed as a Lower Division Clerk. W.P.(C)No. 26017/2010 against which W.A.No.1029/2014 was filed by the first respondent therein claim is for grade promotion above respondents 7 to 11 therein. In so far as Writ Appeal No.1309/2014 is concerned, that is filed against the judgment in Writ petition No.24978/2008, by a LD typist working in Sri Vidhyadhiraja Homeo Medical College, Thiruvananthapuram. 6. By the judgment under appeal, highlighting the need for a uniform staff pattern in all the three Homoeo Medical Colleges, the learned Single Judge disposed of the writ petition quashing Exts.P9, P14 and P21 mentioned above and directing the government to reconsider the entire matter. In the purported compliance of the directions contained in the judgment, Government issued order dated W.A.Nos.652 of 2013, 1028, 1029 & 1309 of 2014 5 ## G.O. MS 99/2013/H&FWD dated 22.3.2013. The relevant ## part of which reads thus: “7. Government have examined the matter in detail and decided to formulate normative entitlement of nonteaching staff in the three Aided Homoeopathic Medical Colleges in the State. Hence, Government hereby accord sanction to create the following non-teaching posts as a uniform pattern for all Aided Homoeopathic Medical Colleges in the State on condition that the staff working in excess posts other than the above approved staff pattern may be permitted to continue treating them as supernumerary and to be adjusted in the vacancies arising due to promotion, retirement, death and resignation.” This order has been produced as Annexure I in Writ Appeal No.652/2013 and the operation of this order has been stayed by this Court. 7. In so far as W.A.No. 1309/2014 is concerned, that is filed against the judgment in Writ Petition No.24978/2008 and the appellant is a LD Typist employed in Sri. Vidyadhiraja Homeo Medical College, Trivandrum. His W.A.Nos.652 of 2013, 1028, 1029 & 1309 of 2014 6 grievance is that in the purported compliance of the directions contained in the judgment under appeal, the Government have issued Annexure A1 order mentioned above, whereunder staff pattern of all the three Aided Homoeo Medical Colleges, including that of Sri. Vidyadhiraja Homeo Medical College, have been revised, whereby he is also adversely affected. 8. We heard the counsel for the appellants, the respective learned counsel appearing for the party respondents and the learned Government Pleader appearing for the official respondents. 9. As a preliminary objection, the contesting respondents argued that if at all the appellants are aggrieved by the judgment under appeal, they being third parties, should have moved for review of the judgment of the learned Single Judge and that the appeals filed are misconceived. To our view, this contention is only to be W.A.Nos.652 of 2013, 1028, 1029 & 1309 of 2014 7 rejected in the light of the judgment of this Court in _**Ramachandran vs Food Corporation of India (1989(2) KLT 112)**_ , where it has been held that the remedy available to the person aggrieved by an order passed in pursuance to the judgment of this Court, is to file appeal against the judgment itself. Therefore, this contention is only to be rejected and we do so. The primary issue that arises for consideration is whether the learned Single Judge was justified in interfering with Ext.P9, the staff fixation order issued by the Government for Padiyar Memorial Homeopathic Medical college in pursuance to the enabling provisions of the agreement dated 25.4.2002 introducing direct payment with effect from 1.1.2000. From the facts that we have narrated above, it is clear that the grievance which is highlighted by the first respondent in Writ Appeal No.652/2013, is his individual grievance in fixing him in Ext.P9 as a Lower Grade Clerk, although he was then W.A.Nos.652 of 2013, 1028, 1029 & 1309 of 2014 8 working as Junior Superintendent. Similarly, the grievance of the first respondent in Writ Appeal No.1028/2014 was that in Ext.P9 order, he was fixed as a Lower Division Clerk though at the relevant time he was an Upper Division Clerk. Similarly, grievance of the first respondent in Writ Appeal.No.1309/2014 was that he was a head clerk but was fixed as Lower Division Clerk in Ext.P9. The first respondent in Writ Appeal No.1029/2014 was urging his claim for grade promotions against respondents 7 to 11. When these individual grievances are highlighted, it is unnecessary for this Court to set aside Ext.P9 in its totality and thereby causing prejudice to other employees as well, who are not having any grievance regarding Ext.P9. This is all the more so for the reason that Ext.P9 order has survived a challenge up to the Apex Court, which upheld the legality of the order in its judgment in _**State of Kerala and Another v. Naveena Prabhu and Others (2009(3) SCC 649**_ ). W.A.Nos.652 of 2013, 1028, 1029 & 1309 of 2014 9 10. We may also take note of the contention of the appellant in W.A.No.24978/2008, that the issue regarding staff fixation of Sri. Vidyadhiraja Homeo Medical College, is governed by the direction of this Court in the judgment in W.A.No.1546 of 2015. Since we have already concluded that interference with Ext.P9 order has not called for, it is not necessary to deal with this contention. 11. In such circumstances, we dispose of these appeals, setting aside the judgments under appeal to the extent Ext.P9 is set aside, and leaving it open to the government to reconsider the individual grievances that are highlighted in the writ petitions. 12. Annexure A1 order being a dependant order is also set aside. It is made clear that the observations in this judgment will not stand in the way of the government in exercising its rights under the Direct Payment Agreement or otherwise in W.A.Nos.652 of 2013, 1028, 1029 & 1309 of 2014 10 fixing or revising the staff fixation of the Homoeopathic Medical Colleges, in accordance with law. With these observations the appeals are disposed of. **ANTONY DOMINIC JUDGE** **SHIRCY.V JUDGE** smm