State of Kerala and The Principal and Controlling Officer, Government Homoeopathic Medical College, Iranimuttom, Thiruvananthapuram-9 v. Dr. G. Rajalekshmy Kunjamma and Shree Vidyadhira Vidya Samajam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **&** ## **THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.** **TUESDAY, THE 21[ST] DAY OF DECEMBER 2021 / 30TH AGRAHAYANA, 1943** ## **WA NO. 1614 OF 2021** **AGAINST THE JUDGMENT dated 14.07.2021IN WP(C) 18880/2010 OF HIGH COURT OF KERALA** ## **APPELLANTS/RESPONDENTS 1 & 2 IN WP(C):** - **1 STATE OF KERALA,** - **REPRESENTED BY ITS SECRETARY TO GOVERNMENT, HEALTH & FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **2 THE PRINCIPAL AND CONTROLLING OFFICER, GOVERNMENT HOMOEOPATHIC MEDICAL COLLEGE, IRANIMUTTOM,THIRUVANANTHAPURAM-9.** **BY ADV GOVERNMENT PLEADER SRI.A.J.VARGHESE, SR** ## **RESPONDENTS/PETITIONER & 3RD RESPONDENT IN WP(C):** - **1 DR.G.RAJALEKSHMY KUNJAMMA, MEDICAL OFFICER, SHREE VIDYADHIRAJA HOMOEOPATHIC HOSPITAL, MEDICAL COLLEGE, NEMOM, THIRUVANANTHAPURAM-20.** - **2 SHREE VIDYADHIRAJA VIDYA SAMAJAM, REGISTERED CHARITABLE SOCIETY,REPRESENTED BY ITS SECRETARY, "ASWATHY", T.C.28/1349,HINDU MISSION ROAD,THIRUVANANTHAPURAM-1.** **BY ADVS. SRI.ELVIN PETER P.J. (B/O) SMT.POOJA SURENDRAN** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 21.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** :2: W.A.No.1614 of 2021 ## **JUDGMENT** ## **A.K.Jayasankaran Nambiar, J.** The State is in appeal against the judgment dated 14.07.2021 in WP(C).No.18880 of 2010. 2. The brief facts necessary for disposal of the appeal are as follows: The writ petitioner, who holds the qualification of Diploma in Homeopathic Medicine and Surgery, and who had registered herself under the Travancore Cochin Medical Practitioners Act, was appointed as a Resident Medical Officer in the Sree Vidyadhiraja Homeopathic Hospital, which was attached to the Sree Vidyadhiraja Homeopathic Medical College, by Ext.P5 order of appointment dated 01.06.2005. It was her case in the writ petition that, although the Government had entered into a direct payment agreement with the Sree Vidyadhiraja Homeopathic Medical College, the writ petitioner was not recognised as a staff working in the college for the purposes of getting the benefit of :3: W.A.No.1614 of 2021 scales of pay fixed by the Government pursuant to the said agreement. The various representations preferred by the petitioner before the Government in that regard ultimately culminated in Ext.P10 order, by which the Government formally rejected her claim for salary on the ground that the hospital attached to the college was not brought under the purview of the direct payment system, and therefore, the Government had no liability whatsoever to pay the salary of the petitioner. In Ext.P10 order, the Government also noted that its stand was based on the judgment dated 23.02.2009 of the Supreme Court in Civil Appeal Nos.1152 - 1153 of 2009 rendered in the context of the Dr.Padiar Memorial Homeopathic Medical College, where the Court took the view that the staff attached to the hospital annexed to the Medical College were not covered by the direct payment agreement entered into between the college and the Government. It is apparent from a reading of the said judgment though, that the said view of the Supreme Court was taken on the peculiar facts noticed in that case where, by a Government Order dated 20.03.2001, the Government had made it clear that the order directing payment of salary and allowances to the staff attached to the Medical College would not be made applicable to the staff of the hospital attached to the college. :4: W.A.No.1614 of 2021 3. Ext.P10 order was impugned by the writ petitioner before this Court through the Writ Petition aforementioned. Through a counter affidavit filed on behalf of the State Government, it was pointed out that in Sree Vidyadhiraja Homeopathic Medical College, the direct payment system came into force with effect from 01.09.2002 and the writ petitioner was unilaterally appointed by the management on 01.06.2005. It was specifically contended that the attached hospital does not come under the purview of the direct payment system, and hence, the Government was not liable for any expenditure or payment of salary to the staff appointed in the hospital. The Government also took the stand that its policy of excluding the hospital from the direct payment system had been upheld by the Supreme Court in the judgment in Dr.Padiar Memorial Homeopathic Medical College case referred above. The Government also pointed out that the writ petitioner had been appointed in the hospital with effect from 18.06.2012, pursuant to the Government sanctioning four posts of Medical Officers in the hospital attached to the Medical College. The Government stand, therefore, was that prior to that date the writ petitioner was not entitled to the benefit of salary at Government sanctioned scales for the period worked in the hospital attached to the Medical College. :5: W.A.No.1614 of 2021 4. The learned Single Judge, who considered the matter found that in terms of the Homeopathy (Minimum Standards of Education) Regulations, 1983 enacted pursuant to the powers conferred on the Central Council of Homeopathy under Section 33 and Section 20 of the Homeopathy Central Council Act, 1973, the minimum requirements stipulated for a Homeopathic College was that it should have a hospital having not less than 25 beds and have minimum requirements norms and standards as specified by the Regulations in regard to teaching as well as hospital staff, equipment, accommodation, training and other facilities and such Homeopathic Colleges had also to have one peripheral Homeopathic Clinic for every 10 admissions. The Regulations also provided that a Homeopathic College having facilities specified in the Regulations for Degree Course may start graded Degree Course as well. The said stipulations under the Regulation were treated by the learned Single Judge as having binding effect on the State Government, and hence, the State Government could not ignore the mandate of the Regulations that stipulated that the Homeopathic Medical College had necessarily to have a hospital attached to it. In other words, the hospital was seen as an integral part of the Homeopathic Medical College for the purposes of determining coverage under the direct payment agreement entered into with the Government. On the said reasoning, the learned :6: W.A.No.1614 of 2021 Single Judge found that the State Government could not escape its liability to pay the salary of the writ petitioner with effect from 01.06.2005, the date of her appointment as Resident Medical Officer in the hospital, upto 2012 when the Government ultimately accepted its liability to pay salary to the writ petitioner. The differential salary was directed to be paid to the writ petitioner within a period of two months from the date of receipt of the copy of the judgment, failing which, it was made clear that the amount would bear interest at the rate of 10% per annum. 5. Before us, it is the submission of the learned Senior Government Pleader Sri.A.J.Varghese relying on the grounds in the Appeal memorandum that the learned Single Judge erred in distinguishing Ext.P11 judgment of the Supreme Court in the case of Dr.Padiar Homeopathic Medical College. It is reiterated that the direct payment agreement was entered into between the Government and the Homeopathic Medical College in question, and not with the hospital attached to the College, and hence, the staff of the hospital would not be entitled to any pay at the scale of pay prescribed by the Government. It is also contended that the judgment of the learned Single Judge has the effect of directing the State Government to create new posts to :7: W.A.No.1614 of 2021 accommodate the writ petitioner and such directions cannot be issued by this Court as laid down in **Indian Drugs and Pharmaceuticals Ltd** v. **Workmen, Indian Drugs and Pharmaceuticals Ltd [2007 (1) SCC 408]** . The learned Government Pleader also points out that if the claim of the writ petitioner is allowed at this distance of time, it would lead to a floodgate of claims from similarly situated employees of the hospital attached to the Homeopathic Medical College in question and this would visit the Government with huge financial liabilities. 6. We have heard the learned Senior Government Pleader Sri.A.J.Varghese appearing for the appellants and Smt.Pooja Surendran, the learned counsel appearing for the respondent college. 7. On a consideration of the rival submission, we find no reason to interfere with the judgment of the learned Single Judge. Firstly, it is clear from the appointment order produced in relation to the writ petitioner (Ext.P5) that her appointment as Resident Medical Officer was in the Sree Vidyadhiraja Homeopathic Hospital attached to Sree Vidyadhiraja Homeopathic Medical College. It is not in dispute that during the relevant time the Homeopathy (Minimum Standards of Education) Regulations, 1983 made by the Central Council of :8: W.A.No.1614 of 2021 Homeopathy governed the field, and accordingly, the Homeopathic Medical Colleges in the State were mandatorily required to have hospitals attached to them in compliance with the statutory requirements for maintaining minimum standards of education. We also find that the agreement entered into between the State Government and the Vidyadhiraja Vidhya Samajam, Thiruvananthapuram [the educational agency of the Homeopathic Medical College in question], a copy of which was shown to us at the time of hearing of the Writ Appeal, does not contain any clause that excludes the staff of the hospital from the benefit of the direct payment agreement entered into with the Homeopathic Medical College. We have also not been shown any Government Order, akin to that in the case decided by the Supreme Court, specifically excluding the hospital attached to the college from the benefits of the direct payment agreement. Under such circumstances, we see no reason to assume that the direct payment agreement entered into between the Homeopathic Medical College and the State Government excluded the hospital that was attached to and formed an integral part of the Homeopathic Medical College in question. As rightly found by the learned Single Judge, this was the distinguishing feature that served to distinguish the facts of the present case from that decided by the Supreme Court in Ext.P11 judgment :9: W.A.No.1614 of 2021 pertaining to the Dr.Padiar Memorial Homeopathic Medical College. For the sake of convenience, we deem it appropriate to extract paragraph 10 and 11 of the supreme court judgment which makes the above aspect clear: “10. Subsequent thereto another order G.O.(Rt) 517/2001/H&FWD came to be issued on 20.3.2001 by the Health & Family Welfare Department, Government of Kerala reiterating its earlier order that until fixation of staff strength etc. the members of the staff in Padiar Medical College would be paid salary and allowance at the approved rate at which they were drawing their pay for the month of December, 1999. However, in the said order it was made clear that the order would not be applicable to the staff of the hospital attached to the college as the 'direct payment system' has not been introduced in the college hospital. 11. The aforesaid order, therefore, makes it crystal clear that while introducing the direct payment system by the Government in respect of Padiar Medical College, such benefit was extended to the members of the staff of the college whereas the staff of the hospital attached to the college was specifically excluded from the applicability of the aforesaid benefit. This order was never challenged by any of the respondents herein since such benefit of direct payment system was not extended to the staff of the hospital attached to the college. They did not acquire any status and consequently they acquired no right being specifically excluded from the benefit thereof. The decision of the Government to exclude the staff of the hospital attached to the college from the purview of the aforesaid orders was made specifically stating that direct payment system is not introduced by the Government so far as the college hospital is concerned. The same being a policy decision of the Government and having not been challenged as :10: W.A.No.1614 of 2021 either arbitrary or discriminatory at any stage by the respondents, thus we are not called upon to scrutinize the legality and validity of the aforesaid decision. Besides, the same being a policy decision of the Government, the same stands as this Court generally does not interfere with the policy decision of the Government.” 8. Thus, for the reasons stated in the judgment of the learned Single Judge, as supplemented by the reasons in this judgment, we find the Writ Appeal to be devoid of merit. 9. As regards the judgment in **Divisional Manager, Aravali Golf Club and Another** v. **Chander Hass and Another [(2008) 1 Supreme Court Case 683]** , relied on by the learned Government Pleader for contending that this Court could not have directed the State Government to create new posts inasmuch as the creation of posts was the prerogative of the Government, we might only observe that we do not doubt the well settled proposition in service law that this Court cannot direct the Government to create posts in a service for that is a matter of policy, in which Courts have no role to play. In the instant case, however, we find that the learned Single Judge has not directed the creation of any new posts by the Government but has only directed the Government to comply with its obligation under the direct payment agreement which, as we have already found, covers not only the posts :11: W.A.No.1614 of 2021 under the Homeopathic Medical College but also the posts existing in the hospital attached to the said college, the hospital being an integral part of the college as mandated by the statutory regulations in force. Before parting with this case, and taking note of the apprehension raised by the learned Senior Government Pleader, we make it clear that the benefit of this judgment shall enure only to the writ petitioner and others similarly placed, who have pursued their claim before this Court through timely litigation already initiated by them and not to others. Sd/- **A.K.JAYASANKARAN NAMBIAR JUDGE** Sd/- **MOHAMMED NIAS C.P. JUDGE** mns :12: W.A.No.1614 of 2021 ## **APPENDIX** ## **PETITIONERS EXHIBITS:NIL** ## **RESPONDENTS ANNEXURE:** **ANNEXURE R1(A): TRUE COPY OF THE G.O.(MS) NO.184/2003/H&FWD DATED 03.09.2003 ISSUED BY THE GOVERNMENT.** **//TRUE COPY//** **P.A TO JUDGE**