N. Suresh Babu v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR** **WEDNESDAY, THE 11TH DAY OF JANUARY 2012/21ST POUSHA 1933** ## **WPC.No. 13700 of 2010 (J)** **-----------------------** **PETITIONER :** **---------------------** **N.SURESH BABU, ASSOCIATE PROFESSOR IN RADIATION PHYSICS, DEPARTMENT OF RADIOTHERAPY, MEDICAL COLLEGE, THIRUVANANTHAPURAM.** **BY ADV. SMT. I. SHEELA DEVI** **RESPONDENT(S) :** **--------------------------** **1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF HEALTH AND FAMILY WELFARE, THIRUVANANTHAPURAM.** **2. THE DIRECTOR OF HEALTH EDUCATION, THIRUVANANTHAPURAM.** **3. ACCOUNTANT GENERAL, OFFICE OF THE ACCOUNTANT GENERAL THIRUVANANTHAPURAM.** **R1 TO R3 BY GOVT. PLEADER SMT. NISHA BOSE** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/12/2011 , ALONG WITH WPC. 31993/2010 & CONNECTED CASES, THE COURT ON 11/01/2012 DELIVERED THE FOLLOWING:** **Mn** **...2/-** **APPENDIX** ## **WPC.No. 13700 of 2010 (J)** ## **PETITIONER'S EXHIBITS:** - **EXT.P1 : COPY OF THE (RT) NO. 1865/08/H&FWD DATED 28.7.1998 ISSUED BY THE 2ND RESPONDENT.** - **EXT.P2 : COPY OF THE ORDER G.O.(MS) NO. 14/2010/H&FWD DATED 14.1.2010 ISSUED BY THE 1ST RESPONDENT.** - **EXT.P3 : COPY OF THE G.O.(P) NO. 425/2009/H&FWD DATED 14.12.2009 ISSUED BY THE GOVERNMENT.** - **EXT.P3(a) : COPY OF THE ANNEXURE A II.** - **EXT.P4 : COPY OF THE PAY SLIP ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER.** - **EXT.P5 : COPY OF THE NIL PAY SLIP ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER.** - **EXT.P6 : COPY OF THE REGULATION OF MEDICAL COUNCIL OF INDIA.** - **EXT.P7 : COPY OF THE G.O. (MS) NO. 144/2010/H&FWD DATED 5.4.2010 ISSUED BY THE 1ST RESPONDENT.** - **EXT.P8 : COPY OF THE COMMUNICATION NO. 51520/S1/2010/H&FWD DATED 1.6.2011 FORWARDED BY THE 1ST RESPONDENT TO THE 2ND RESPONDENT.** ## **RESPONDENT'S EXHIBITS :** - **EXT.R1(a) : COPY OF THE G.O.(MS) NO. 337/70/H & FWD DATED 09.09.1970.** - **EXT.R1(b) : COPY OF THE MODIFIED ORDER ISSUED AS PER G.O.(MS) NO. 469/2008/H&FWD DATED 22.08.2008.** **EXT.R1(c) : COPY OF THE G.O.(MS) 100/2608/H&FWD DATED 07.04.2008.** **//TRUE COPY//** **P.S. TO JUDGE** **Mn** ## **T.R. Ramachandran Nair, J.** **- - - - - - - - - - - - - - - - - - - - - - - -** ## **W.P.(C) Nos. 13700, 31993, 33024, 33025 & 33027 of 2010** **- - - - -- - - - - - - - - - - - - - - - - - - - -** ## **Dated this the 11th day of January, 2012.** ## **JUDGMENT** All these writ petitions raise a common question regarding the status of the petitioners who are Lecturers/Associate Professors in Radiation Physics in various medical colleges. They commonly plead for the position that they should be treated as persons in the medical stream and have to be granted the benefit of the pay revision order dated 14.12.2009 on that basis whereas the State contends for the position that they are not doing any clinical work and are only teachers in the department of Radiation Therapy and therefore they are not doing any similar work as that of the Doctors and hence, they cannot be termed as part of the medical stream, but really belong to non-medical category. 2. The reliefs sought for in W.P.(C) Nos.31993/2010, 33024/2010, 33025/2010 and 33027/2010 are identical, viz. the implementation of pay revision benefits. W.P.(C) No.13700/2010 concerns the retirement age as the petitioner plead for applicability of retirement age as that of the Doctors in other categories. WPC.13700/2010 etc. 2 3. For convenience, I shall refer to the facts detailed in W.P.(C) No.31993/2010. The basic qualifications of the petitioners are B.Sc. and M.Sc. in Physics. The first petitioner has got M.Phil in Physics and Diploma in Radiological Physics. The other petitioners have got Diploma in Radiation Physics. They were appointed as Lecturers in Radiation Physics after the Public Service Commission invited applications for the post of Lecturer Grade II (Non-medical Assistant Physicist). The appointment orders have been produced as Exts.P1 to P9. Ext.P10 produced therein is an order passed by the Government implementing the revision of pay scales and allowances to the teaching staff of Medical, Dental, and Pharmaceutical Science colleges in the State with effect from 1.1.1996. Relying upon the same, the petitioners point out that the post of Lecturer (with P.G.) held by them will have to be redesignated as Senior Lecturer and the pay scale applicable will be Rs.10000 – 325 - 15200. But thereafter the Government issued Ext.P11 letter informing the Accountant General that for placement as Lecturer Senior Scale, the departmental sanction from the Director of Medical Education is required which is disputed by the petitioners by contending that the designation as Senior Lecturer is automatically granted by Ext.P10 order and therefore is only a formality. The petitioners therefore approached the Government by filing WPC.13700/2010 etc. 3 Ext.P12 representation through their Association, to issue necessary orders redesignating all the Lecturers in Radiation Physics as Senior Lecturers with effect from 1.1.1996. That representation is still pending. 4. Ext.P13 is the order dated 14.12.2009 issued by the Government revising the pay scales of teachers in the Government Medical, Dental, Nursing and Pharmaceutical Science Colleges with effect from 1.1.2006 as per the U.G.C. scheme. In Annexure VII of the same, the teaching cadre is divided into A, B, C and D and(A) is “Medical (Non Clinical)”. Radiological Physics is included therein as item IX. Non Medical Categories will come within sub heading (D). The petitioners are relying upon various clauses in Ext.P13 to contend that they have been granted the benefits under the medical category. But when the same was implemented in respect of various petitioners, they have been granted the scales of pay under Fitment Table 14-A as applicable to Lecturers (Non Medical) (Entry Level) whereas they were entitled for the fixation of pay scale under Fitment Table 2 – Senior Lecturers (Medical and Dental/Lecturer with PG Degree (to be redesignaterd as Assistant Professor); as evident from Exts.P17, P19, P23 and P25 pay slips. It is pointed out that on the implementation of Ext.P13, they will be automatically redesignated as Assistant Professors as provided in para 5.2 therein. The petitioners further WPC.13700/2010 etc. 4 represented the matter and in answer to one of the representations, the Accountant General informed the second petitioner that the department of Radiation Physics belong to non medical category in the light of Ext.P22 communication issued by the Government. It is pointed out that Ext.P22 is only a letter addressed to the Accountant General and not an executive order and therefore it cannot have any force and the executive order issued by the Government cannot be varied by a subsequent letter issued by the Under Secretary. Ext.P27 is the judgment in W.P.(C) No.2233/2004, wherein this Court directed the implementation of the revised scale of pay as provided in Ext.P10 in respect of a Senior Lecturer in Medico Sociology, taking the view that the said Government Order does not differentiate medical and non medical teachers in the same department. This judgment is also heavily relied upon. 5. In the writ petitions W.P.(C) Nos.33024/2010, 33025/2010 and 33027/2010, the facts are identical. In W.P.(C) Nos.33024/2010 and 33027/2010 the petitioners are working as Associate Professors. W.P.(C) No.31993/2010 is taken as the leading case and the pleadings of both sides are referred to as contained therein. 6. After the filing of the counter affidavit, the petitioners have filed reply affidavit and additional reply affidavit. Ext.P28 is the judgment in WPC.13700/2010 etc. 5 W.P.(C) No.9047/2004 which reiterated the principles stated in Ext.P27 judgment. 7. The case of the respondents in a nutshell is that the petitioners are not under the medical stream and they are really under the non medical stream. Annexure VII in Ext.P13, whereby Radiological Physics has been included along with the medical (non clinical) teaching cadre, is really a mistake. Later, Ext.P22 is properly issued by the Government as a clarification. The clause that is applicable to the petitioners is para 12(b) of Ext.P13. It is also contended that the teachers who belong to non medical stream are not eligible for Career Advancement Promotion as per Ext.P13 order. There are only three categories of teachers in the Medical Colleges, viz. clinical, non-clinical and non medical. The first two categories must have basic MBBS qualification and PG qualification in medical subjects and the petitioners have no MBBS qualification. They cannot be equated with the doctors and their duties and responsibilities are really different. The doctors have ward duties, causality duties, emergency duties, out patient department duties, medical/surgical ICU and other duties apart from academic duties. Radiological Physics is an academic subject taught in Medical Colleges. They are taking classes in Radiation Physics for para medical courses like DRT and they play an indirect role in cancer treatment WPC.13700/2010 etc. 6 and radiation treatment planning, by helping Radiation Oncologist. 8. One of the controversies which arose during the hearing of the writ petitions, is whether MBBS is a prescribed minimum qualification for posts in Radiological Physics also, so as to be included in Medical category. The specific contention raised in the affidavit of the second respondent dated 21.7.2011 is that “the minimum qualification for the entry post of M.D. Radiological Physics is MBBS and with DRP and this is another speciality of Medical discipline.” The assertion made by the respondents that the petitioners cannot be treated as medical category as they are not having MBBS qualification, is refuted by the petitioners in W.P.(C) No.31993/2010 by producing Ext.P29 along with the additional reply affidavit which is the photo copy of the relevant pages of the minimum qualifications for Teachers in Medical Institutions Regulations, 1998. Therein, as against the post Tutor/Demonstrator/Resident/Registrar, the qualification shown is MSC(Physics/Chemistry/Biophysics). 9. The first respondent filed an additional affidavit as directed by this Court producing the relevant pages of the Minimum Qualification for Teachers in Medical Institutions Regulations 1998 amended upto November, 2010 as Annexure R1(d). Therein, as against the column Tutor/Demonstrator/Resident/Registrar, the qualification shown is only WPC.13700/2010 etc. 7 MBBS. Again, the petitioners produced along with a memo, the relevant pages of the Gazette of India containing the amendment to the Minimum Qualifications for Teachers in Medical Institutions Regulations 1998 as amended by Regulations in 2009 to show that MBBS is not a qualification for these posts. In view of the lingering controversy between the two sides and so as to ascertain the correct position, this Court suo-motu impleaded the Medical Council of India as additional respondent No.4 in the writ petition and they were directed to explain the correct position. A counter affidavit has been filed on their behalf. 10. Ext.R4(a) produced along with their counter affidavit contains the relevant Gazette notification dt.5.12.1998 pertaining to the Regulations prescribing the qualification for the post of Tutor/Demonstrator/Resident/Registrar in Radiological Physics. It is averred in para 7 of the counter affidavit that the qualification prescribed for the said post is M.Sc. in Physics/Chemistry/Bio-Physics. 11. Therefore, obviously MBBS is not a qualification for the posts occupied by the petitioners and acquisition of MBBS, thus cannot be insisted. 12. Heard learned Senior Counsel Shri O.V, Radhakrishnan, and learned counsel Smt. I. Sheela Devi appearing for the petitioners, WPC.13700/2010 etc. 8 Smt. Nisha Bose, learned Government Pleader appearing for the State and learned counsel Shri Alexander Thomas, for the Medical Council of India. 13. Shri O.V. Radhakrishnan, learned Senior Counsel mainly contended as follows: Going by Ext.P10, the post of Lecturer has to be redesignated as Senior Lecturer and a particular scale of pay also is prescribed. The order covers all the teachers in Medical Colleges clinical or non-clinical which position has been laid down in Exts.P27 and P29 judgments. Ext.P27 has become final, as the writ appeal filed against the said judgment, was dismissed. It is therefore submitted that the declaration of law therein automatically entitles the petitioners to get the scale of pay of Senior Lecturer but that was denied and the representations are still pending. 14. It is pointed out that as far as Ext.P13 is concerned, the same revises the scales of pay in terms of the UGC Scheme. It is also pointed out that going by para 5.1 of Ext.P13, the three teaching posts in the Government Medical and Dental colleges will be Assistant Professor, Associate Professor and Professor and going by para 5.2 all existing Senior Lecturers will be redesignated as Assistant Professors. Para 8(c) clearly applies to Senior Lecturer in Radiological Physics and it is provided that they should be given pay revision and Career Advancement in the same WPC.13700/2010 etc. 9 manner as in the preceding paragraphs, of course subject to fulfillment of academic requirements. By inviting my attention to the Fitment Table and the Annexure it is pointed out that Fitment Table 1-A cannot apply to the petitioners as it is in respect of Lecturers without P.G. Degree. Fitment Table 2 will apply as it is made applicable to Senior Lecturers (Medical & Dental)/Lecturer with P.G. degree (to be redesignated as Assistant Professor). It is pointed out that the revised pay band + A.G.P. as provided, will have to be granted to the petitioners. The action of the respondents in applying Fitment Table 14-A was not correct, learned Senior Counsel submits. Annexure VII which included Radiological Physics in the teaching cadre under the heading “Medical and Non-clinical was also relied upon. The other contention with regard to the illegality of Ext.P22 reply without modifying the executive order, has also been raised by the learned Senior Counsel. In W.P.(C) Nos.33024/2010 and 33027/2010, the petitioners are claiming the revised scale provided in Table 4 of Ext.P13 produced in W.P. (C) No.31993/2010. 15. An analysis of Exts.P10 and P13 produced in W.P.(C) No.31993/2010 is therefore required in this context. Ext.P10 came into force even before the petitioners were appointed. The petitioners were appointed by various orders, viz. Exts.P1 to P9. The first one is dated WPC.13700/2010 etc. 10 19.5.2008 and the last order is dated 29.1.2010. The petitioners were appointed during this period. The Government Order Ext.P10 is dated 16.6.2000 which revised the pay and allowances of “Teachers” in Medical, Dental and Pharmaceutical Science Colleges. In para 2 it is stated that the Government are pleased to order revision of scales of pay and allowances of the teaching staff of the Medical, Dental and Pharmaceutical Science Colleges. In the Annexure to Ext.P10, in serial No. III after item 7, it is provided that “hereinafter recruitment will be to the Senior Lecturer post only and the qualification will be PG Degree in the respective discipline. … … The existing Lecturers with PG will be redesignated as Senior Lecturers and paid Rs.10000-15200.” The said scale is shown as serial No.2 in clause III. The Government in Ext.P11 communication addressed to the Accountant General (A &E), Kerala, Thiruvananthapuram was of the view that departmental sanction by the Director of Medical Education is necessary for the placement of a Lecturer as Senior Lecturer, All the petitioners therefore sought for the said permission by filing representations, which are yet to be acted upon. 16. Ext.P13, as already noticed, is effective from 1.1.2006. It is a composite one as it contains clauses for revision of pay scales as well as rules for Career Advancement Promotion. The clauses applicable to the WPC.13700/2010 etc. 11 petitioners are stated to be paragraphs 5.2 and 8(c). Clause 5.2 reads as follows: “5.2. All existing Senior Lecturers having Post Graduate Medical/Dental Degree in the concerned discipline will be redesignated as Assistant Professor. But the Lecturers who have no P.G. degree in concerned discipline will be continued as Lecturer till they acquire Post Graduate Degree in the concerned specialty. They will be redesignated as Assistant Professors from the date of acquiring Post Graduate Degree as prescribed.” In para 5.1, it is provided that teaching posts will be Assistant Professor, Associate Professor and Professor in Government Medical and Dental Colleges. The qualification will be Post Graduate Degree (MD/MS/DNB/M.Ch./DM/MDS or equivalent qualifications) in the concerned specialty with 3 years teaching experience or such other teaching experience as prescribed by the Medical Council of India/Dental Council of India from time to time. This qualification is in respect of Assistant Professor, viz. the entry cadre of teaching staff of the two colleges. One thing that is noticeable from the prescription of qualification is that for the entry post of Assistant Professor it is MD/MS etc. or the equivalent qualification and P.G. like M.Sc. is not shown therein. As far as clause 5.2 is concerned, what is mentioned is that all the existing Senior Lecturers having Post Graduate “Medical/Dental Degree” in the concerned discipline WPC.13700/2010 etc. 12 will be redesignated as Assistant Professor. Therefore, we will have to examine whether the essential qualification M.Sc. in Radiological Physics is a medical degree so as to make the said clause applicable to the petitioners. The other clause 8 is under the heading “Career Advancement Scheme for teachers of government Medical/Dental Colleges.” Sub-clauses (a) and (c) therein are relevant for the purpose of this case, which are extracted below” “(a) The Career Advancement Scheme for teachers in Medical/Dental colleges with P.G. Degree will be as per the norms of UGC and following the minimum academic eligibility requirements as per the regulations of the Medical Council of India/Dental Council of India, with modifications if any as approved by the Government of Kerala, from time to time. (c) The existing faculties in Radiological Physics will be given pay revision and Career Advancement in the same manner as in the preceding paragraphs, subject to fulfillment of academic requirements to be prescribed. However, those without specified qualifications/experiences as per MCI regulations or equivalent qualifications approved by State Government will be eligible for pay revision/career advancement promotion as applicable for other non-medical categories as below.” Clause 8(c) applies to the existing faculties in Radiological Physics as it stipulates that they will be entitled for pay revision and Career WPC.13700/2010 etc. 13 Advancement Promotion in the same manner as in the preceding paragraphs, of course subject to fulfillment of academic requirements. In Annexure VII, under the heading “Branch – II Teaching Cadre”, sub heading A is Medical (Non Clinical) and Radiation Physics is the ixth one along with Anatomy, Physiology, Biochemistry, etc. Sub heading (B) relates to Medical (Clinical),sub heading (C) relates to Medical (Super specialties) and sub heading (D) relates to Non-Medical categories. 17. The bone of contention herein is whether the teaching cadre in Radiological Physics as it is included in Medical (Non Clinical) under Annexure II, the stand taken by the respondents is justified. 18. I have referred to the counter affidavit filed by the Government, wherein based on the basis of difference in the duties, it is mentioned that the petitioners are different from doctors in Medical and Dental Science Colleges. In the additional affidavit, the contention that the minimum qualification for the entry post in Radiological Physics is MBBS, even though was raised, in the light of the clarification by the Medical Council of India, the said contention cannot be accepted. Ext.R1(a) provides for the index of teaching specialty and item 41 is Radiological Physics. Ext.R1(b) is a ranked list published for the post of Lecturer in Radiation Physics and it is pointed out that the post notified is Non-medical Assistant - Physicist, WPC.13700/2010 etc. 14 and petitioners 1 and 2 were included in the said rank list. It is submitted that para 8(c) of Ext.P13 is a mistake. In the affidavit filed on behalf of the first respondent on 2.8.2011 these aspects have been reiterated. Annexure R1(b)(1) is the order whereby the qualifications were prescribed for the post of Lecturer Grade II, based on which the Public Service Commission issued notification for the post of Radiation Physicist. Ext.R1(c) is the communication of the Government dated 1.6.2011 addressed to the Director of Medical Education, stating that necessary proposals should be furnished for including the faculties of Radiation Physics in non-medical category to issue Career Advancement Promotion to them. 19. Evidently, in the light of the affidavit filed on behalf of the additional 4[th] respondent, it can be seen that the qualification prescribed for the entry level post of Tutor/Demonstrator/Resident/Registrar in Radiological Physics in Medical Colleges as per the Regulations 1998 is M.Sc. in Physics/Chemistry/Bio-Physics., The petitioners were appointed based on the qualifications prescribed by the Government, produced as Ext.R1(b)(1) wherein the post is described as Lecturer Grade II (NonMedical Assistant Physicist). In the ranked list published by the Public Service Commission also, the post is described as Lecturer in Radiation Physics/Lecturer Grade II (Non-Medical Assistant - Physicist). WPC.13700/2010 etc. 15 20. This is the factual scenario as far as the appointments of the petitioners are concerned. The most important issue to be settled is whether Ext.P22 letter, a clarificatory one, can survive. Herein, learned Senior Counsel Shri O.V. Radhakrishnan submitted that Ext.P13 Government Order is the executive order issued in exercise of the executive power of the State and Rules of Business. The same cannot be modified by a Government letter. The Government letter Ext.P22 has not been authenticated on behalf of the Governor. Therefore, it cannot be attached any value. The same is issued by the Under Secretary to the Government alone, where as Ext.P13 will show that the same has been issued by order of the Governor under the signature of the Secretary to Government. Therefore, it is submitted that an Under Secretary to Government cannot have any power to issue a clarification like this and the same is void and ultra vires and cannot be accepted at all. 21. Learned Government Pleader submitted that Ext.P22 is not ultra vires or void, as the same is issued under the Rules of Business of the Government and it is also submitted that similar orders have been upheld by this Court. In that context, two decisions of this Court are relevant, wherein various legal principles have been discussed. The first one is by a Division Bench of this Court in **C. Haridasan and another v. State of Kerala and** WPC.13700/2010 etc. 16 **others** (2007 (4) KHC 928) to which I am also a party, and the second one is in **Abdul Rasheed S. K. v. State of Kerala and another** (2008 (4) KHC 596) by my learned Brother K. Balakrishnan Nair, J. (as he then was) which had referred the judgment in **C. Haridasan's case** (supra) also. 22. The facts of the case in **C. Haridasan's case (** supra) will show that the dispute was regarding the retirement age of N.M.R. workers absorbed in regular service of the Kerala Water Authority. The petitioners continued in service upto the age of 58 years and the pension claims were settled as if they have retired from service at the age of 55. They came to know that a Division Bench of this Court in Ext.P8 judgment produced therein, took the view that the retirement age is 55, relying upon Ext.P9 clarification issued by the Secretary to Government to the Managing Director of the Water Authority. The clarification issued was that N.M.R. workers regularised in service can continue upto to 58 years only if they are continuing in the very same post in which they were regularised, and on promotion they became Class III employees and therefore they are ineligible to continue beyond the age of 55. The Government letter was issued by the Additional Secretary for Secretary to Government. The contention was that the same cannot dilute the Government orders initially issued, which contention was accepted by the learned Single Judge. The WPC.13700/2010 etc. 17 Division Bench elaborately considered the relevant questions in the light of the various decisions including the important decision of the Apex Court by a Constitution Bench in **Samsher Singh v. State of Punjab** (AIR 1974 SC 2192). Following the dictum laid down in the said judgment by the Apex Court it was held that the Secretary can issue a clarification in the nature of Ext.P9 and the same shall be treated as a clarification issued by the Government. The principles stated by the Apex Court in **Samsher Singh's case** (supra) in para 35 of the judgment are the following: “The Governor makes rules under Art.166(3) for the more convenient transaction of business of the Government of the State. The Governor can not only allocate the various subjects amongst the Ministers but may go further and designate a particular official to discharge any particular function. But that could be done on the advice of the Council of Ministers. The essence of Cabinet System of Government responsible to the Legislature is that an individual Minister is responsible for every action taken or omitted to be taken in his Ministry. In every administration, decisions are taken by the civil servants. The Minister lays down the policies. The Council of Ministers settle the major policies. When a civil servant takes a decision, he does not do it as a delegate of his Minister. He does it on behalf of the Government. The officers are the limbs of the Government and not its delegates. Where functions are entrusted to a Minister and these are performed by an official employed in the Minister's department, there is in law no WPC.13700/2010 etc. 18 delegation because constitutionally the act or decision of the official is that of the Minister.” The principles stated therein will show that the individual Minister will be responsible for every action taken by the Ministry and when a civil servant takes a decision he does it on behalf of the Government, as the officers are the limbs of the Government. Therefore, constitutionally, the act or decision of the official is that of the Minister and who is governed by the Rules of Business. In para 14, the issue whether the clarification, similarly issued like the one herein need be authenticated, the Division Bench speaking through K. Balakrishnan Nair, J. (as he then was) held that the same is not a requirement. Para 14 explained the legal issue as follows: “The clarificatory order issued in the form of Ext.P9 need not be authenticated as contemplated under Article 166(2) of the Constitution of India. The views of the Government on a matter can be definitely conveyed by the Secretary to Government or the Additional Secretary to Government to the Water Authority. The said opinion need not be authenticated in the form of a Government order issued in the name of the Governor. The Secretary, the Addl. Secretary, the Joint Secretary, the Deputy Secretary and the Under Secretary to Government can issue orders on behalf of the Government as per the Rules of Business. Such orders are, in the ye of law, orders of the Government. The Governor can, on the advice of the Chief Minister, allocate the business of the Government to various Ministers. Again, on the advice of the Council of WPC.13700/2010 etc. 19 Ministers, the Governor by rules, can further allocate the business of the Government to various officers, under Art.166(3) of the Constitution of India.” Such orders will, therefore. be orders of the Government, it was held therein. 23. In the later case, viz. in **Abdul Rasheed's case** (2008 (4) KHC 596), the very same question was examined in the light of Articles 166(1) and (2) of the Constitution of India. A direction issued by the Government to the Kerala State Industrial Development Corporation Limited with regard to the settlement of a loan transaction, was challenged stating that the same is only a letter issued by the Secretary to the Government and cannot be treated as an order of the Government. Reliance was placed on Article 166 (1) of the Constitution of India and it was contended that as the said order is not authenticated as per the Rules of Business prescribed under Article 166, it cannot have any efficacy. The issue was considered in the light of **Samsher Singh's case** (supra) and an earlier decision in **Sanjeevi Naidu v. State of Madras** (AIR 1970 SC 1102). The legal principles governing the Rules of Business of the Government including the responsibilities of the Cabinet and the individual Ministers and the way in which the officers are acting as limbs of the Government have been delineated in para 12 of **Sanjeevi Naidu's case** (supra), which is extracted in **Abdul Rasheed's case** WPC.13700/2010 etc. 20 (supra). The same reads as follows: “12. The cabinet is responsible to the Legislature for every action taken in any of the ministries. That is the essence of joint responsibility. That does not mean that each and every decision must be taken by the cabinet. The political responsibility of the Council of Ministers does not and cannot predicate the personnel responsibility of the Ministers to discharge all or any of the governmental functions. Similarly an individual Minister is responsible to the Legislature for every action taken or omitted to be taken in his ministry. This again is a political responsibility and not personal responsibility. Even the most hard working minister cannot attend to every business in his department. If he attempts to do it, he is bound to make a mess of his department. In every well planned administration, most of the decisions are taken by the civil servants who are likely to be experts and not subject to political pressure. The Minister is not expected to burden himself with the day to day administration. His primary function is to lay down the policies and programmes of his ministry while the Council of Ministers settle the major policies and programmes of the Government. It is always open to a Minister to call for any file in his ministry and pass orders. He may also issue directions to the officers in his ministry regarding the disposal of Government business either generally or as regards any specific case. Subject to that over all power, the officers designated by the 'Rules' or the standing orders, can take decisions on behalf of the Government. These officers are the limbs of the Government and not its delegates.” WPC.13700/2010 etc. 21 In para 6 of the judgment, the learned Judge held as follows: “The provisions under Art.166(2), that orders and other instruments made and executed in the name of the Governor shall be authenticated as specified in the rules, are only directive in nature. Any infringement of Art.166(1) or (2) will not affect the validity of the order or direction issued by the Governor.” After referring to various principles, in para 7 the issues were analysed thus: “In this case, admittedly, Ext.P3 letter was issued by the Principal Secretary to Government, Industries Department. It was signed on behalf of the Principal Secretary to Government by the Additional Secretary. The Rules of business of the Government authorise the Principal Secretaries, Secretaries and Additional Secretaries to discharge the business of the Government in the ministry concerned. Ext.P3 letter would show that there is a decision of the Principal Secretary to Government regarding the payment to be made by the 2[nd] respondent to the writ petitioner. His decision, being the decision of the officer authorised by the Rules of business, is the decision of the Government in view of the decisions of the Apex Court in “ _Sanjeevi Naidu”_ (supra) and _“Shamsher Singh”_ (supra). Therefore, the contention of the 2[nd] respondent cannot be accepted. The 2[nd] respondent is normally bound to respect the directions issued by the Government, as the one in Ext.P3.” Going by the same, it can be seen that this Court was of the view that the letter is one properly issued with authority by the officer. WPC.13700/2010 etc. 22 24. In the light of the above principles, it can be seen that Ext.P22 is a letter issued by the Secretary to Government addressed to the Accountant General. The same is communicated under the signature of the Under Secretary. Therefore, evidently the Secretary to Government is empowered to act as a limb of the Ministry and is authorised duly under the Rules of Business by the dictum laid down in the decisions discussed above. The Secretary to Government is duly authorised to discharge the functions of the Ministry, herein the Health and Family Welfare Department. This fact is not disputed. What is argued by Shri O.V. Radhakrishnan, learned Senior Counsel is that a clarificatory letter cannot modify an executive order, that it is not issued as an Executive Order and is not one issued under the rules of business. The said contention advanced in the widest possible terms, cannot be accepted in the light of the dictum laid down by the Apex Court which have been followed in the two judgments discussed above. The Under Secretary to Government was acting under the Rules of Business while communicating the decision of the Government itself. It is not a letter which can be ignored and is not ultra vires. 25. Therefore, the next question is whether the decision communicated by the letter that Radiation Physics (Radiological Physics) under the Medical Education Service belong to non medical category is WPC.13700/2010 etc. 23 correct or not. Herein, the materials relied upon by the first respondent in the counter affidavit are relevant, apart from the pleadings of the petitioners. The petitioners in W.P.(C) No. 31993/2010 have averred in para 6 that they have been appointed to the post based on the notification issued by the Public Service Commission for selection and appointment to the post of “Lecturer in Radiation Physics/Lecturer Grade II (Non-Medical Assistant - Physicist”. The description of the post by the Commission itself is NonMedical Assistant - Physicist. The copy of the rank list produced by the State along with the additional affidavit wherein some of the petitioners have been included, is also having the same description. The qualifications prescribed, going by Ext.R1(b)(1) also is for the same post. These aspects have not been disputed by the petitioners. Therefore, evidence otherwise than Ext.P22 are available in support of the plea of the first respondent that the post occupied by the petitioners is described as “Non-medical” even at the time of selection and appointment as well as in the order prescribing the qualification. 26. The next question, therefore, is whether the inclusion of the said post among the category “Medical” in Annexure VII of Ext.P13, will help the contentions of the petitioners. Obviously, the same is termed as a mistake in the counter affidavit. Even otherwise, it can be seen that going WPC.13700/2010 etc. 24 by the steps preceding the appointment orders of the petitioners, they have been selected and appointed in a post in the non medical stream. Therefore, obviously Ext.P13 will not help the petitioners to contend that Radiological Physics has to be retained under Medical (Non Clinical) category, in the absence of any other prescription either by any statute or in the relevant orders fixing the qualifications, etc. None else have been relied upon by the petitioners. The respondents have failed in establishing their plea that MBBS is a prescribed qualification for the entry post in Radiological Physics, as the prescription of qualification as per the Medical council of India Regulations and by the Government Order, does not show that MBBS is a qualification. But that also will not help the petitioners that they will have to be included in the Medical (Non-clinical) stream. The Government is empowered to clarify an executive order going by the dictum laid down in **C. Haridasan's case** (2007 (4) KHC 928). Such a clarification issued under the Rules of Business cannot be said to be void, inoperative or ultra vires. I have already held that the clarification issued as per Ext.P22 that the petitioners come under Non-medical stream, is supported by the pleas of the petitioners themselves that they have been selected and appointed to the post of Lecturer in Radiation Physics/Lecturer Grade II (Non-medical Assistant) and supported by the name of the post WPC.13700/2010 etc. 25 given in the rank list published by the Public Service Commission and the Government Order prescribing the qualification itself. Therefore, Ext.P22 clarificatory letter has been correctly issued. For that reason also, it can be safely concluded that the post held by the petitioners, even though can be termed as teaching cadre, cannot be termed as Medical (Non Clinical). 27. Then the further question is whether the petitioners are entitled for the benefit of revision of scale of pay as per Ext.P13 and the benefit of Career Advancement Promotion. As already noticed by me, para 5.2 heavily relied upon by the learned Senior Counsel for the petitioners refers to redesignation of all existing Senior Lecturers having Post Graduate “Medical/Dental Degree” in the concerned discipline. It cannot be said that the petitioners are having any medical degree as the M.Sc. degree is in Physics and their diploma is in Radiological Physics. Para 5.1 also provides for the entry cadre of teaching staff under Medical Education Service having qualification of Post Graduate degree (MD/MS/DNB/M.Ch./DM/MDS or equivalent qualifications) which also will not take in any qualifications of the petitioners. Therefore, paragraphs 5.1 and 5.2 of Ext.P13 will not help the petitioners to contend that they will have to be included in the medical category. Therefore, Clause 8(c) providing that the existing faculties in Radiological Physics will be given WPC.13700/2010 etc. 26 pay revision and Career Advancement in the same manner as in the preceding paragraphs, obviously is a mistake, as contended by the first respondent. What is granted to them now is the benefits under Clause 12 of Ext.P13 for “Non-Medical Categories”. But the Government itself has now directed the Director of Medical Education, by Ext.R1(c) letter to submit necessary proposals for the inclusion of the faculties of Radiation Physics in non medical category in order to issue Career Advancement Promotion of them, urgently. The said letter was issued after pointing out the fact that even though the faculties in Radiation Physics are included in the Medical category, they do not possess requisite qualification for medical category. Therefore, the Government itself has addressed the problems of the petitioners. It is mentioned in the additional affidavit dated 2.8.2011 that on the basis of Annexure R1(c) the Director of Medical Education has sent a proposal on 1.8.2011. If that be so, the petitioners' rights are well protected as the Government is taking action to redress their grievances. 28. The next aspect is regarding the applicability of Ext.P10 as far as some of the petitioners, viz. petitioners in W.P.(C) Nos.31993/2010 and 33025/2010 are concerned. Herein, we will have to consider the matter in the light of Exts.P27 and P28 judgments. Obviously, Ext.P10 has a different footing. It provides that “Government are now pleased to order WPC.13700/2010 etc. 27 the revision of scales of pay and allowances of the teaching staff of the Medical, Dental and Pharmaceutical Science Colleges in the State with effect from 1.1.1996 as shown in the Annexures to this order.” The petitioners are members of the teaching staff of Medical Colleges, which is not disputed. The scope of Ext.P10, as held by this Court in Ext.P27 judgment, is that they will apply to both medical and non-medical teachers without any differentiation. This is clear from para 5 of the judgment wherein it is held as follows: “I have examined Ext.P1 G.O., which relates to pay and allowances of teaching staff of the Medical, Dental and Pharmaceutical Science Colleges in the State. Ext.P1 does not differentiate in medical and non-medical teachers in the same department. On a plain reading of Ext.P1 it is clear that it is applicable to teachers whether medical or non-medical or otherwise in Medical, Dental and Pharmaceutical Science Colleges.” The contention of the Director of Medical Education is adverted to in para 7 of the judgment and it was finally held in para 8 thus: “I have perused Ext.P1 Government Order and took the view that Ext.P1 is applicable to all teaching staff irrespective of medical or non-medical lecturers. Ext.P1 does not restrict its application to the Lecturers in clinical branch. Ext.P1 confers benefits to Lecturers in Dental, Medical and Pharmaceutical Science Colleges WPC.13700/2010 etc. 28 in Kerala. If Ext.P1 confers benefit to Lecturers irrespective of clinical branch or non-clinical branch, the petitioner is entitled to the benefits conferred by it. Therefor, the petitioner is eligible for time bound cadre promotion and all other benefits conferred vide Ext.P1 order.” The order passed by the Director of Medical Education was held as illegal. These principles were considered in Ext.P28 judgment which was rendered in a case filed by a Lecturer in Health Education. 29. Therefore, it is clear from Ext.P10 as well as the dictum laid down in the above two judgments that Ext.P10 confers various benefits to Lecturers irrespective of clinical or non clinical and there is no distinction between medical and non medical as far as the applicability of Ext.P10 is concerned. It contains the revised scales of pay of “teaching staff” of Medical, Dental and Pharmaceutical Science Colleges. Hence, every member of the teaching staff is covered under it. This is in sharp distinction to the clauses contained in Ext.P13. Therefore, since the petitioners in W.P. (C) Nos.31993/2010 and 33025/2010 have been appointed after Ext.P10 was implemented, they will be entitled for the scale of pay applicable to Senior Lecturers therein. 30. In Ext.P11 produced in W.P.(C) No.31993/2010, the Accountant General was informed by the Government that the Director of Medical WPC.13700/2010 etc. 29 Education will have to redesignate them and the petitioners have already filed applications for such redesignation which will have to be duly addressed and the redesignation will have to be granted to them. Therefore, the petitioners in W.P.(C) Nos.31993/2010 and 33025/2010 are entitled for the grant of the above relief, even though they are not entitled for the entire benefit claimed under Ext.P13 order. 31. In W.P.(C) No.13700/2010 the petitioner is working as an Associate Professor in Radiological Physics. His qualification is IInd Class Masters Degree in Physics and Post Graduate diploma in Radiological Physics. He was appointed as a Lecturer in the Medical College, Calicut and was later promoted as Assistant Professor by Ext.P1 order. He was due to retire on 30.4.2010. The retirement age of Doctors was increased to 60 years as per Ext.P2 order dated 14.1.2010 and Exts.P3 and P3(a) are copies of orders fixing the pay and allowances of the Medical Education Service, dated 14.12.2009. The petitioner contends that in Regional Cancer Centre which also comes under the Medical University, the retirement age of the staff is increased to 60 years. The contention is that the retirement age of the petitioner is 60. 32. In the counter affidavit filed by the first respondent, it is explained that the decision by the Government is only to enhance the WPC.13700/2010 etc. 30 retirement age of Doctors and Teachers in the Medical Education Service, considering the fact that there was dearth of qualified and experienced Doctors. Accordingly, Ext.P2 order was issued. It is specifically mentioned that the same will not apply to Medical, Dental, Nursing and Pharmaceutical Science Colleges and non medical categories under the Medical Education Service. It is contended that the petitioner comes under the non medical category. Ext.R1(a) is the Government Order dated 9.9.1970 prescribing qualifications based on which the petitioner was appointed and Ext.R1(b) is the modified order prescribing the qualifications for the post in question. 33. Therefore, essentially, the question again turns on the plea of the petitioner that he comes under the medical category. Evidently, the petitioner will not come under the medical category in the light of the facts already discussed in respect of the similarly placed petitioners in the connected writ petitions. Even going by Ext.R1(a) the entry post is described as non medical category. Ext.P2 increases the retirement age of Doctors and non medical categories are specifically excluded from Ext.P2. Therefore, the petitioner is not entitled for enhancement of retirement age. By the interim order dated 23.4.2010 the petitioner was directed to be retained in service beyond 30.4.2010. But it was clarified in the said order WPC.13700/2010 etc. 31 itself that such continuance of the petitioner will not confer any right on him to get salary for the period from 1.5.2010 and the period from 1.5.2010 will not be reckoned for any purpose whatsoever including determination of the terminal benefits, in the event of the writ petition being dismissed. 34. As the petitioner is not entitled for the benefit of Ext.P2, the writ petition is liable to be dismissed. Since the petitioner had continued from 1.5.2010 and has worked, the respondents have gained from the said work done by the petitioner. Therefore, the Government will grant the remuneration at the eligible rate for the said period and he will not be entitled for any other service benefits including the counting of the said period for any purpose and it is made clear that the payment also will not be reckoned for the purpose of grant of pension and other retirement benefits. Appropriate orders in that regard will be passed by the Government. 35. W.P.(C) Nos.31993 and 33025 of 2010 are partly allowed to the extent that the petitioners are entitled for the benefit of Ext.P10 Government Order dated 16.6.2000 and there will be a consequential direction to redesignate them as Senior Lecturers and grant them such scale of pay, viz. Rs.10000 - 15200, from the respective dates of their entitlement and the arrears of pay and allowances will be sanctioned to them accordingly by passing appropriate orders within a period of three months from the date of WPC.13700/2010 etc. 32 receipt of a copy of this judgment. The said writ petitions are dismissed with regard to the relief sought for by the petitioners to fit them in the Revised Pay Band + AGP of Rs.15600 - 39100 + 7000 applicable to Senior Lecturers (Medical & Dental)/Lecturers with PG degree, with effect from 1.1.2006 applying Fitment Table 2 of Ext.P13 produced in W.P.(C) No.31993/2010. W.P.(C) Nos.33024/2010 and 33027/2010 are dismissed. 36. The Government will consider and pass orders on the proposal made by the Director of Medical Education on 1.8.2011 with regard to grant of Career Advancement Promotion to the persons like the petitioners, expeditiously, at any rate, within a period of five months from the date of receipt of a copy of this judgment, pursuant to Ext.R1(c) produced along with the affidavit of the first respondent in W.P.(C) No.31993/2010. It is upto the Government to consult the Medical Council of India also. W.P.(C) No.13700/2010 is dismissed and the Government will be free to fix the remuneration of the petitioner from 1.5.2010 till the date of his relief from service. No costs. **(T.R. Ramachandran Nair, Judge.)** ## **kav/**