Kerala High Court
L.Nagendra Shenoi vs State Of Kerala And Others on 27 January, 2021
WP(C).No.32413 OF 2011(B)
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
WEDNESDAY, THE 27TH DAY OF JANUARY 2021 / 7TH MAGHA, 1942
WP(C).No.32413 OF 2011(B)
PETITIONER/S:
L.NAGENDRA SHENOI
DR.PADIAR MEMORIAL HOMOEOPATHIC MEDICAL COLLEGE,,
CHOTTANIKKARA.
BY ADV. SRI.K.R.RAJKUMAR
RESPONDENT/S:
1 STATE OF KERALA AND OTHERS
REPRESENTED BY THE SECRETARY TO GOVERNMENT,, HEALTH
AND FAMILY WELFARE DEPARTMENT,,
THIRUVANANTHAPURAM.695 001.
2 THE PRINCIPAL
SANCTIONING AUTHORITY/CONTROLLING OFFICER,,
GOVERNMENT HOMOEOPATHIC MEDICAL COLLEGE,,
THIRUVANANTHAPURAM.695 001.
3 THE PRINCIPAL
DR.PADIAR MEMORIAL HOMOEOPATHIC MEDICAL COLLEGE,
HOSPITAL, CHOTTANIKKARA.682 312.
4 DR.PADIAR MEMORIAL HOMOEOPATHIC MEDICAL
COLLEGE HOSPITAL, CHOTTANIKKARA, REPRESENTED BY,
ITS SECRETARY, DR.PADIAR MEMORIAL HOMOEOPATHIC,
MEDICAL COLLEGE HOSPITAL, CHOTTANIKKARA.682 312.
R1 BY GOVERNMENT PLEADER
R1 BY ADV. SMT.R.RANJANIE
R3 BY ADV. SMT.R.RANJINI
OTHER PRESENT:
GP-SRI.HARISH KUMAR
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
WP(C).No.32413 OF 2011(B)
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27.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.32413 OF 2011(B)
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JUDGMENT
Dated this the 27th day of January 2021
Petitioner through the instant writ petition has sought
indulgence of this Court seeking the following reliefs:
i) Call for the records leading to Ext.P12 and to quash the same as
it violates the terms and conditions as agreed by the
Government and the 4th respondent as seen from Ext.P2
agreement.
ii) Issue a writ of mandamus directing the respondents to appoint
the petitioner in the post of Attender which has fallen vacant,
taking into account his lien over the post as he has been for
more than 12 years taking into account of Ext.P8.
iii) To disburse all the service benefits to the petitioner which he is
legally due till date.
2. In the earlier round of litigations petitioner along
with other similarly situated persons had approached this
Court vide W.P.(c)No.25592/2000 claiming mandamus to
include all the petitioners while fixing the staff strength and
approve as staff and release salary, with a further prayer to
follow the staff pattern of the Central Council of Homoeopathy
or the pattern envisaged by the Government, while fixing the
WP(C).No.32413 OF 2011(B)
staff strength of the fourth respondent educational agency.
3. The Government and the management of the
college, namely Dr.Padiyar Memorial Homeopathic Medical
College, on 24.1.2000, entered into an agreement, whereby
the Government was made liable to disburse the pay and
allowances due to the staff of the college accrued from
1.1.2000 directly through the Principal of the Institution based
on the existing staff pattern of the Government Homeopathic
Medical College and the hospitals attached therewith. There
were litigations, the Government, directed the Principal and
Controlling Officer, Government Homeo Medical College to
furnish the list of 40 senior most and qualified teaching staff
based on departmental seniority and 50 non-teaching staff for
consideration for fixation. The grievance of the petitioner in
the aforementioned writ petition was, since the Government
decided to approve the staff pattern, taking into consideration
of the staff pattern of the Homeopathic Medical College, there
was no justification in causing discrimination in the college in
which the petitioner was appointed as restriction in the
agreement was only for future appointments, though it was
WP(C).No.32413 OF 2011(B)
refuted by the Government. The aforementioned petition came
to be decided by this Court vide judgement dated 3.3.2005,
whereby direction was issued to consider the case of 11
petitioners including the petitioners herein for treating them
similarly as to others and covered by Exts.P11 and P14
Government Orders in that writ petition. The aforementioned
petition was assailed in writ appeal No.1530/2004 and vide
judgment dated 17.6.2005, the judgment of the Single Judge
was upheld. The matter was taken before the Supreme Court
and the Supreme Court in Civil Appeal No.1152 & 1153 of
2009 dated 23.2.2009, found that the direct payment system
adopted by the Government in respect of Padiar Medical
College, was only extended to the members of the staff of the
college, and not to the staff of the hospital. Even if they were
accorded the benefit of direct payment system up to certain
extent, that would not entitle them to make the staff of the
hospital eligible to claim such benefit. The staff of the college
and the staff of the hospital are discharging different kind of
duties and responsibilities. The civil appeals were allowed and
the writ petition was dismissed. The petitioner has sought lien
WP(C).No.32413 OF 2011(B)
on creation of supernumerary post.
4. When the matter was taken up today, there is no
representation on behalf of the petitioner as no further cause
of action survives, in view of the decision in Civil Appeal (ibid).
5. On perusal of the reply of the Government, it is
evident that all the future appointments to the post of non-
teaching staff of the institution has to be made by the
educational agency only from the list of the candidates. The
newly arisen vacancy would not be considered as it had
become invalid owing to the judgment of the Hon'ble Supreme
Court. The stand of the college also reveals that petitioner
and similarly placed persons were retained by the
Management and paid salary.
6. The sum and substance of the claim in the present
writ petition for implementation of Ext.P9 no longer subsists.
It may be in that background the petitioner is not interested in
pursuing this writ petition. I am of the view that once the
Supreme Court had already dismissed the decision rendered
in the writ petition as well as the writ appeal, the claim of the
petitioner no longer survives. The writ petition is accordingly
WP(C).No.32413 OF 2011(B)
dismissed. Since I am disposing the writ petition in the
absence of the Counsel liberty is granted to the petitioner to
revive the writ petition in case if something survives, despite
the reasoning aforementioned.
Sd/-
AMIT RAWAL
JUDGE
Jm/
WP(C).No.32413 OF 2011(B)
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE APPOINTMENT LETTER DT
10.02.1999
EXHIBIT P2 TRUE COPY OF THE ORDER NO.4804/99-00 DT
11.02.2000
EXHIBIT P3 TRUE COPY OF THE AGREEMENT DT 24.01.2000
EXHIBIT P4 TRUE COPY OF THE G.O(MS)/100/2000/H & FWD
DT 25.04.2000
EXHIBIT P5 TRUE COPY OF THE FILE NOTE OF THE LAW
DEPARTMENT DATED 30.10.2000
EXHIBIT P6 TRUE COPY OF THE GO (RT) NO.517/01H & FWD
DT 20.02.201
EXHIBIT P7 TRUE COPY OF THE MINUTES OF MEETING DATED
16.11.2001
EXHIBIT P8 TRUE COPY OF THE ORDER NO.18066/J2/2002/H
& FWD DATED 16.04.2003
EXHIBIT P9 TRUE COPY OF THE JUDGMENT IN WPC
NO.25592/2000 DT 03.03.2004
EXHIBIT P10 TRUE COPY OF THE JUDGMENT IN W.A.
1530/2004 DT 17.06.2005
EXHIBIT P11 TRUE COPY OF THE JUDGMENT IN CIVIL APPEAL
NO.1152-1153/2009 DT 23.02.2009
EXHIBIT P12 TRUE COPY OF THE GO(RT) 3690/2009 H & FWD
DT 18.09.2009
RESPONDENT'S/S EXHIBITS:
EXHIBIT R1 NIL
EXHIBIT R2 NIL
EXHIBIT R2A A TRUE COPY OF THE DIRECT PAYMENT SYSTEM
AGREEMENT DATED 24.01.2000
EXHIBIT R2B A TRUE COPY OF GO(MS) NO.99/02 DATED,
WP(C).No.32413 OF 2011(B)
25.04.2002
EXHIBIT R2C A TRUE COPY OF THE GO (RT) NO.517/01/H &
FWD DATED 20.02.2011
EXHIBIT R2D A TRUE COPY OF THE JUDGMENT DATED
23.02.2009
EXHIBIT R2E A TRUE COPY OF THE G.O(RT) NO.3690/09/H
AND FWD DATED 18.12.2009
EXHIBIT R3 NIL
EXHIBIT R4 NIL
EXHIBIT R4(1) THE PHOTOCOPY OF THE JUDGMENT IN WPC
NO.6389/10 DATED 1.3.2010
EXHIBIT R4(2) THE PHOTOCOPY OF THE INTERIM ORDER DATED
8.1.2013 IN WPC NO.606/13
