Dr.G.Rajalekshmy Kunjamma vs State Of Kerala And Others
2021 Latest Caselaw 14612 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
                THE HONOURABLE MR. JUSTICE AMIT RAWAL
     WEDNESDAY, THE 14TH DAY OF JULY 2021 / 23RD ASHADHA, 1943
                       WP(C) NO. 18880 OF 2010
PETITIONER:

          DR.G.RAJALEKSHMY KUNJAMMA,
          MEDICAL OFFICER, SHREE VIDYADHIRAJA HOMOEOPATHIC
          HOSPITAL, SHREE VIDYADHIRAJA HOMEOPATHIC, MEDICAL
          COLLEGE, NEMOM, THIRUVANANTHAPURAM-20.
          BY ADVS.
          SRI.ELVIN PETER P.J.
          SMT.POOJA SURENDRAN


RESPONDENTS:

    1     STATE OF KERALA AND OTHERS,
          SECRETARY TO GOVERNMENT, HEALTH AND FAMILY,
          WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT,
          THIRUVANANTHAPURAM.
    2     THE PRINCIPAL AND CONTROLLING OFFICER,
          GOVERNMENT HOMOEOPATHIC MEDICAL COLLEGE,
          IRANIMUTTOM, THIRUVANANTHAPURAM-9.
    3     SHREE VIDYADHIRAJA VIDYA SAMAJAM,
          REGISTERED CHARITABLE SOCIETY, REPRESENTED BY ITS
          SECRETARY, "ASWATHY", T.C.28/1349, HINDU MISSION ROAD,
          THIRUVANANTHAPURAM-1.
          BY ADV SRI B HARISH KUMAR, GOVERNMENT PLEADER


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
09.07.2021, THE COURT ON 14.07.2021 DELIVERED THE FOLLOWING:
 W.P. (C) No.18880 of 2010     -2-




                            JUDGMENT

The question which arises for adjudication in this writ

petition is whether petitioner is entitled to the salary for

the period 01.06.2005 to 2012 for having been appointed

as Resident Medical Officer in Sree Vidyadhiraja

Homeopathic Hospital attached to Sree Vidyadhiraja

Homeopathic Medical College, Thiruvananthapuram under

the direct payment system from government or Institution.

2. In order to address the aforementioned question,

the facts in brief are, that vide order dated 01.06.2005

Ext.P5 petitioner was appointed as a Resident Medical

Officer in the hospital attached to the College with a pay

scale of 7800-12975 revised as 12930-20250. Health and

Famitly Welfare Department vide order dated 03.09.2003

brought the College aforementioned along with other

Colleges under a direct payment system with effect from

01.11.1995.

3. To answer the question raised, hereinabove,

learned counsel representing the petitioner submitted that

Central Council of Homeopathy, came out with a

notification dated 11.05.1983 by promulgating

Homeopathy (minimum standards of education)

Regulations 1983. As per Clause 3 Part II of the

aforementioned Regulations the minimum requirements

for Homeopathic College was hospital not less than 25

beds over and above teaching and hospital staffs,

equipment's, accommodation, training and other facilities

and one peripheral homeopathic clinic for every ten(10)

admissions. The hospital staff attached to the College shall

be in accordance with Annexure-D which prescribed the

minimum requirements of College consisting of Deputy

Medical Superintendent, Medical Officer, Resident Medical

Officers, Dressers, Dispensers, Radiologist, Methodologists

so on so forth. Vide Ext.P10 order dated 04.02.2009 on the

directions of this Court in W.P.(C)No.3739 of 2009,

Government examined the matter in detail and rejected the

case of the petitioner for the salary on the ground that the

hospital attached to Sree Vidyadhiraja Homeopathic

Medical College had not been brought under the preview

of Direct Payment System.

4. The aforementioned reasoning, as per

submissions, is wholly incorrect in view of the fact that the

Central Act is applicable and binding upon the State Act in

view of Schedule 7 List I entry 66 read with Article 245 of

the Constitution of India. In other words Regulations

framed with the previous sanction of the Central

Government would have a statutory force. The genesis of

the reasoning while declining the payment of the salary on

account of the fact that the hospital was not brought under

the preview of the direct payment system based on the

judgment rendered by Supreme Court in Civil Appeal

No.1152 - 1153 of 2009 arising out of SLP (C) Nos.19951-

19952 of 2005 decided on 23.02.2009. In fact this

judgment would not be applicable in view of the

observation rendered in Paragraph No.10 of the judgment

and thus urges this Court for allowing the writ petition.

5. On the contrary, Mr.B.Harish Kumar, learned

Government Pleader opposed the aforementioned prayer

and submitted that it is only in 2012 the hospital was

brought under the direct payment system and in the

absence of the same, it was only College was under the

preview of the direct payment system as evident from

notification Ext.P1 and supported the reasoning assigned

in the impugned decision Ext.P10 which is based upon the

ratio decidendi culled out in the judgment of Supreme

Court Ext.P11. He further submitted that the Central

Council would not be applicable to the State and urged this

Court for dismissal of the writ petition.

6. I have heard counsel for the parties and

appraised the paper books.

7. The regulations aforementioned in my view

would have a deep and pervasive applicability over the

State Homeopathic Colleges. As the College imparting

education of Homeopathy also requires some practical

work which cannot run in the absence of the facility of the

hospital. It is with this rationale behind the

aforementioned regulations were promulgated. It would

be expedient to extract regulations 3 and 10 of Part II :

" 3. Minimum requirements :

There shall be attached to every Homoeopathic College a Hospital having not less than 25 beds and having minimum requirements, norms and standards as specified by these regulations in regard to teaching as well as hospital staff, equipment, accommodation, training and other facilities and such Homoeopathic Colleges shall also have one peripheral Homoeopathic clinic for every 10 admissions.

Provided that a Homoeopathic College having facilities specified in these regulations for Degree Course nay start Graded Degree Course. "

"10.Hospital Staff:

The staff in a Teaching Homoeopathic Hospital attached

to the college shall be in accordance with Annexure 'D'."

8. As per Annexure D attached to the

aforementioned regulations, upto 50 beds and for 51 to

100 beds, number of the employee to be employed in the

teaching homeopathic hospital has been specified.

Reasoning assigned in Ext.P10 is based upon finding of the

Supreme Court in the judgment referred above.

9. I am afraid that the aforementioned reasoning is

not justified in view of the observations recorded in

paragraph No.10 of the judgment, the same reads as

under:

"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."

10. In this case the staff of the hospital is also

attached to the College and the factum of appointment of

the petitioner as Resident Medical Officer also reiterate

the same. The order of appointment reads thus:

"PROCEEDINGS OF THE SECRETARY SHREE VIDYADHIRAJA VIDYA SAMAJAM, THIRUVANANTHAPURAM.

ORDER No.SVVSA 50/05, dated 01-06-2005 Dr.G.Rajalakshmi Kunjamma, 'Prabhamandiram', Kodunganoor P.O., Thiruvananthapuram - 13 is appointed as Resident Medical Officer in Shree Vidyadhiraja Homeopathic Hospital attached to Shree Vidyadhiraja Homeopathic Medical College, Nemom, Thiruvananthapuram - 20. Dr.Rajalakshmi Kunjamma is advised to report for duty to the Principal SVRHM College as early as possible.

Sd/-

P.N.Krishna Pillai Secretary."

11. The order introducing the direct payment system

in the College cannot be strictly read in isolation that it

would be applicable to a College when the College is

imparting an educational like practical training to the

students undergoing the training of a Doctor while

undergoing of homeopathy. Such Colleges cannot run in

the absence of any hospital thus, the order Ext.P1 cannot

bet treated to be applicable only to the members of the

College staffs but it would also be applicable to the staff of

the hospital attached to the College. Accordingly, Ext.P10

is set aside. Writ petition is allowed.

Respondent State is directed to release the salary of

the petitioner with effect from 01.06.2005 to 2012 within a

period of two months from the date of receipt of a certified

copy of the judgment, failing which it will inure interest at

the rate of 10% per annum.

Sd/-

AMIT RAWAL JUDGE VV

APPENDIX OF WP(C) 18880/2010

PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE ORDER G.O. DATED 3.9.2003 ISSUED BY THE GOVERNMENT.

Exhibit P2 TRUE COPY OF THE DIPLOMA CERTIFICATE OF THE PETITIONER.

Exhibit P3 TRUE COPY OF THE REGISTRATION CERTIFICATE ISSUED BY THE TRAVANCORE COCHIN MEDICAL COUNCIL.

Exhibit P4 TRUE COPY OF THE HOMOEOPATHY (MINIMUM STANDARDS OF EDUCATION), REGULATIONS, 1983 ISSUED BY THE CENTRAL COUNCIL OF HOMOEOPATHY.

Exhibit P5 TRUE COPY OF THE APPOINTMENT ORDER DT.

1.6.2005 OF THE PETITIONER ISSUED BY THE 3RD RESPONDENT.

Exhibit P6 TRUE COPY OF THE RELEVANT EXTRACT OF THE ANNEXURE ATTACHED TO THE ORDER DATED 25.3.2006 SANCTIONING SCALES OF PAY TO DIFFERENT POSTS.

Exhibit P7 TRUE COPY OF THE LETTER DATED 5.4.2010 SENT BY THE DEPUTY MEDICAL SUPERINTENDENT.

Exhibit P8 TRUE COPY OF THE ORDER DATED 9.4.2010 ISSUED BY THE 3RD RESPONDENT PROMOTING THE PETITIONER AS CHEF MEDICAL OFFICER. Exhibit P9 TRUE COPY OF THE NOTIFICATION ISSUED BY THE IST RESPONDENT IN THE GAZETTE DT.

6.7.2006.

Exhibit P10 TRUE COPY OF THE ORDER DATED 16.5.2009 ISSUED BY THE IST RESPONDENT.

Exhibit P11 TRUE COPY OF THE JUDGMENT DATED 23.2.2009 IN CIVIL APPEAL NOS. 152-553 OF 2009 OF THE HONBLE SUPREME COURT.