OP(KAT) No. 463 of 2017 (Z) & OP(KAT) No. 484 of 2017 (Z) — In the High Court of Kerala at Ernakulam

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **THURSDAY, THE 14TH DAY OF DECEMBER 2017/23RD AGRAHAYANA, 1939** **OP(KAT).No. 463 of 2017 (Z) ----------------------------** **OA(EKM) 2611/2017 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM.** **........** **PETITIONER(S)/RESPONDENTS 1 TO 3 IN OA:** **---------------------------------------** **1. THE PRINCIPAL, GOVT. HOMOEO MEDICAL COLLEGE, KOZHIKODE, PIN- 673 010.** **2. THE CONTROLLING OFFICER, DEPARTMENT OF HOMEOPATHIC MEDICAL EDUCATION, THIRUVANANTHAPURAM, KERALA - 695 001.** **3. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, AYUSH (B) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, KERALA - 695 001.** ## **BY GOVERNMENT PLEADER SRI.ANTONY MUKKATH** **RESPONDENT(S)/APPLICANTS & 4TH RESPONDENT IN OA: ------------------------------------------------** **1. DR.SANTHI V., D/O.VISWANATHAN, LECTURER, DEPARTMENT OF PHYSIOLOGY AND BIOCHEMISTRY, GOVERNMENT HOMEO MEDICAL COLLEGE, KOZHIKODE- 673 010, RESIDING AT SREEKALA, PULIKULAM ROAD, NELLIKKAPULI PAALAM, EDAKKAD P.O. KOZHIKODE, KERALA - 673 005.** **2. DR. MERCY GEORGE, D/O.GEORGE, THAMARAKKAT, LECTURER, DEPARTMENT OF SURGERY, GOVERNMENT HOMOEO MEDICAL COLLEGE, KOZHIKODE- 673 010, RESIDING AT TRIO COTTAGE, WEST HILL P.O., KOZHIKODE, KERALA- 673 005** **--2--** **--2--** **OP(KAT).No. 463 of 2017 (Z) ----------------------------** **3. DR.JAYA M.P. PANNAKKAL W/O CYRIAC THOMAS, LECTURER, DEPARTMENT OF ANATOMY, GOVERNMENT HOMOEO MEDICAL COLLEGE, KOZHIKODE- 673 010, RESIDING AT VETTIKKAL, MODAKKALLUR P.O. KUMULLY, KOZHIKODE, KERALA.** **4. DR.BINDU MADAKUNIYIL, D/O.KEALAN, LECTURER, DEPARTMENT OF ANATOMY, GOVERNMENT HOMOEO MEDICAL COLLEGE, KOZHIKODE- 673 010, RESIDING AT SOORYODAYAM, KINATTINKARA PARAMBA, NELLIKODE P.O. KOZHIKODE- 673 016** **5. KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM- 695 001. *ADDL. R6 & R7 IMPLEADED** **6. DR.SHINEE T.JOHN, D/O.T.JOHA BHARATHA RAJ, AGED 37 YEARS, RESIDING AT HOUSE NO.TRRA-72, OPP. TO SREEKRISHNA TEMPLE, AMBALAMMUKKU KOWADIAR, GOVERNMENT HOMEOPATHIC MEDICAL COLLEGE, THIRUVANANTHAPURAM - 695 019.** **7. DR.PUNITHA.S, AGED 37 YEARS, W/O.RAGHUNATH.J, TC/53/2658, VATTAVILA VEEDU, THOOKKUVILA, PAPPANAMCODE.P.O., THIRUVANANTHAPURAM - 695 018, KERALA, FORMERLY WORKING AS TUTOR, IN THE GOVERNMENT HOMEOPATHIC MEDICAL COLLEGE, THIRUVANANTHAPURAM - 695 019.** **ADDL. R6 & R7 ARE IMPLEADED AS PER ORDER DATED 5.12.2017 IN IA.2188/2017.** **R1 TO R4 BY ADV. SRI.P.V.KUNHIKRISHNAN ADDL. R6 & R7 BY SRI.N.NANDAKUMARA MENON (SR.ADVOCATE) ADVS. SRI.P.K.MANOJKUMAR SMT.SMITHA S.PILLAI SMT.M.C.SINY** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 14-12-2017 ALONG WITH OPKAT.484/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **mbr/** ## **OP(KAT).No. 463 of 2017 (Z) ----------------------------** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1: TRUE COPY OF THE OA ALONG WITH ANNEXURES. EXHIBIT P2: A TRUE COPY OF THE COMMUNICATION ISSUED BY THE 2ND PETITIONER DATED 08-11-2017. EXHIBIT P2(A): TRUE COPY OF THE RELEVANT PAGES OF THE ATTENDANCE REGISTER OF TEMPORARY FACULTIES IN THE GOVERNMENT HOMEOPATHIC MEDICAL COLLEGE. EXHIBIT P3: A TRUE COPY OF THE ORDER DATED 15-11-2017 IN OA (EKM) NO.2611/2017. EXHIBIT P4: TRUE COPY OF THE M.A FILED BY THE RESPONDENTS 1 TO 4 ALONG WITH ANNEXURES. RESPONDENTS' EXHIBITS: NIL.** **//TRUE COPY//** **P.S. TO JUDGE** **mbr/** ## P.R.Ramachandra Menon & Devan Ramachandran, JJ. -------------------------------------------------- ## O.P.(KAT)No.463 & 484 of 2017 -------------------------------------------------- Dated this the 14[th] day of December, 2017 ## **JUDGMENT** ## **Devan Ramachandran, J.** The constitutive issue in both these original petitions is regarding the qualification and competence of persons, who claim to have been selected and appointed as Tutors in the Government Homeo Medical College, Kozhikode on daily wage basis. O.P.(KAT)No.484/2017 has been filed by such persons and O.P.(KAT)No.463/2017 has been filed by the Principal of the Government Homeo Medical College, Kozhikode and others challenging the orders issued by the Kerala Administrative Tribunal. 2. As we have already indicated above, the essential point for consideration is whether the persons, who claim to be selected and appointed as Tutors on daily wages in the Government Homeo Medical College, can now stake claim to continue in such position in spite of the fact that subsequent events have altered the qualifications required for holding such posts and also that such posts may have already been abolished. OP(KAT) 463 & 484/17 2 3. The original applications which led to these original petitions were considered by the learned Tribunal and separate orders were issued effectively holding that only those persons who hold a Post-graduation in Homeopathy can be allowed to continue as a teacher, in whatever category, under the services of the Homeopathic Medical Colleges. As regards the order of the learned Tribunal, which is impugned in O.P. (KAT)No.463/2017 is concerned, that was issued on the basis of an earlier order by it, in O.A.No.1677/2017, wherein a declaration was made that any appointment to the post of Lecturers, Assistant Professors and Professors can be done only from among qualified persons who are holding Postgraduation in Homeopathy. 4. The Tutors who are involved in these cases claim that since they have been working on daily wages for the last more than seven years, they should be allowed to continue, notwithstanding the change in the Regulations and qualification that were brought in subsequently. We do not propose to say anything in detail about the controversies involved in these cases since we are aware that anything that we say herein might affect the final resolution of the disputes OP(KAT) 463 & 484/17 3 in the original applications itself. However, for the sake of minimum requirements we state the following facts which we have noticed. 5. As per the Special Rules applicable to the services, the post of Tutors was to be filled up by direct recruitment from among the persons holding BHMS degree while Postgraduation is shown as a preferential qualification. However, in the year 2012, while implementing the UGC scale, the Government issued an order dated 13.01.2012, wherein the four teaching posts in the Homeopathic Medical Colleges, i.e. Tutor, Lecturer, Reader and Professor were reduced to three and re-designated as Assistant Professor, Associate Professor and Professor, as was stipulated in the UGC norms. Subsequently, in the year 2013, the Homeopathy Central Council (Minimum Standards Requirement of Homeopathic Colleges and Attached Hospitals) Regulation was promulgated, under which again the category of teachers were shown as Lecturer, Assistant Professor and Professor and the essential qualification for all the three was prescribed as Post-graduation in Homeopathy. This led to several rounds of litigation which culminated in the decision reported in OP(KAT) 463 & 484/17 4 ## **Radhakrishnan Pillai.D (Dr.) v. Travancore Devasom** **Board and Others** (2016 (2) KHC 119), wherein the requirement of post-graduation as an imperative qualification was granted an imprimatur. 6. The learned Tribunal thereafter considered various original applications and by order in O.A.No.1677/2017 and held that only those persons who hold this qualification can be appointed and that too substantively but not through a walk-in process as was then proposed in the said proceedings. Based on these directions, the Government issued a subsequent order dated 07.11.2017, a copy of which has been appended to O.P.(KAT)No.484/2017 as Exhibit R2(a), wherein in compliance of these directions, instructions were given to terminate all teachers on contract on the conclusion of their term, if they do not hold the qualification of post-graduation. It is also clarified that if there is any contract without a definite time period, such persons should be terminated with effect from 31.01.2017 itself, being the date of the order of the learned Tribunal in O.A.No.1677/2017. It appears that it is based on these directions that the Tutors involved in these cases were then disengaged. OP(KAT) 463 & 484/17 5 7. We have heard Sri.N.Nandakumara Menon, learned Senior Counsel, assisted by Smt.Smitha S.Pillai, appearing for the petitioners in O.P.(KAT)No.484/2017 and Sri.P.V.Kunhikrishnan, learned counsel appearing for respondents 1 to 4 in O.P.(KAT)No.463/2017. We have also heard the learned Government Pleader appearing for the petitioners in O.P.(KAT)No.463/2017 and the official respondents in O.P.(KAT)No.4842017. 8. The contentions of the learned Senior Counsel is that the stipulations in Exhibit R2(a), referred to above, would not apply to the case of the tutors, since they were not appointed on contract. According to him, since the Tutors involved in these cases were appointed on daily wages, the prescriptions therein cannot be applied to their detriment and that they are entitled to continue notwithstanding the fact that they have not acquired post-graduate qualification. He has a specific case that his clients were appointed after going through a detailed evaluation and appointment process and that even though they were appointed on daily wage basis, the appointments were to substantive vacancies available in the year 2010 and 2011 and further that their appointments were OP(KAT) 463 & 484/17 6 as per the Special Rules applicable to the service. He also has a contention that the Special Rules have not been amended, notwithstanding the promulgation of the aforementioned Regulations, and according to him, the rigor of the directions contained in the judgment of the Full Bench aforementioned or in the order of the learned Tribunal in O.A.No. 1677/2017 would not apply to them and that the earlier Regulations of the year 1983 would continue to apply, even if the 2013 Regulations apply to the other categories of teachers. 9. Au contraire, the learned Government Pleader submits that their actions are guided only by the directions contained in **Radhakrishnan Pillai.D (Dr.)'s case** (supra) and that in the order of the learned Tribunal in O.A.No. 1677/2017. He says that Exhibit R2(a) order was issued in implicit compliance of these directions and that nothing can be found fault with it because what was provided therein is to disengage those persons who did not have the imperative qualification of post-graduation. 10. We have considered the dialectical contentions of the learned counsel on either side. We are certain that the specific case of the Tutors being that they were engaged on OP(KAT) 463 & 484/17 7 daily wages, concededly without the qualification of postgraduation, their position would stand, to a large extent, compromised when the Regulations came into effect in the year 2013. We say this because once those Regulations came into effect, the post of Tutor itself stood abolished and in its place a three tier teaching positions were introduced, namely Lecturers, Assistant Professors and Professors. We are cognizant of the fact that the learned Senior Counsel has a contention that Tutors are equated with Lecturers and therefore, that subsequent to the Regulations 2013 coming into effect, that category would step into the shoes of the category of Lecturers. On such assertion that the learned Senior Counsel further contends vehemently that the post of Tutor has not been abolished and that it continues to be available even today. We are afraid that we cannot find favour to this submission because as per the Special Rules, available to the services, the post of Lecturer and Tutor are shown differently, the first being a post to be filled up by promotion and the latter by direct recruitment. The qualifications are also essentially different and one cannot find that the post of Tutor and Lecturer in the Special Rules are the same or that OP(KAT) 463 & 484/17 8 the post of Tutor has been equated to the post of Lecturer under the Regulations 2013. We do not wish to say anything further on this since we are of the view these are matters that will have to be considered by the learned Tribunal when the original applications are finally disposed of. 11. For our limited assessment of the issues in these original petitions, we are only guided to consider whether the Tutors involved in these cases should be allowed to continue, at least as an interim measure, until the original applications pending before learned Tribunal are disposed of. Since the post to which these persons were appointed is that of Tutor, we are certain that if any attempt is now made by the Government or by the official authorities to appoint other persons from the channels of Employment Exchange or otherwise to the post of Tutor, necessarily the petitioners will have to be re-engaged and continued, notwithstanding the fact they do not have the qualification of post-graduation. However, with respect to Lecturers, Assistant Professor and Professor we are certain that the Tutors in these cases cannot claim a vested right for being appointed or being continued in such posts in view of the affirmative declarations of law made OP(KAT) 463 & 484/17 9 by the Full Bench of this Court and by the learned Tribunal in O.A.No.1677/2017. We do not think that this would be permissible. 12. The limited relief thus that can be granted to the Tutors involved in these cases is that if any attempt is made by the Government to appoint persons in their places as Tutors from Employment Exchange or other sources, then that should be interdicted and stopped so that they would be allowed to continue to be engaged because they have been so engaged from 1991 and 2001 onwards. This is the only relief that the Tutors can claim for and can aspire to have at this stage and nothing else. 13. In such circumstances and for the reasons that we have recorded above, we direct the official respondents not to appoint any person to the post of Tutor, disengaging the services of the petitioners involved in these original petitions, from the Employment Exchange or any such other source. However, we clarify that all appointments to the post of Lecturers, Assistant Professors and Professors under the terms of the Regulations 2013 shall be allowed to continue notwithstanding what we have said in this judgment and our OP(KAT) 463 & 484/17 10 interdiction is limited only to the appointment of others to the post of Tutors in the place of the persons involved in these cases, if any such appointments are contemplated by the Government in terms of the Special Rules existing and in no other case. With these observations the original petitions are disposed of reserving liberty granted to the Tutors as above. We make it clear that we have have not considered any of the contentions raised by the parties on its merits in this judgment and our endeavour has only been to resolve the limited issue as to the continuance of the petitioners, pending final disposal of the original applications. Therefore, the learned Tribunal will be at liberty to consider the original applications on its merits untrammeled by anything that we have said in this judgment and we hope that the original applications will be disposed of as expeditiously as possible. P.R.Ramachandra Menon, Judge Devan Ramachandran, Judge tkv