IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 16TH JUNE 2008 / 26TH JYAISHTA 1930 WP(C).No. 19769 of 2006(C) PETITIONER: DR.D.REGHU, LECTURER, DEPARTMENT OF PATHOLOGY, SREE VIDYADHIRAJA HOMEOPATHIC MEDICAL COLLEGE, NEMOM P.O., THIRUVANANTHAPURAM. BY ADV. SRI.S.GOPAKUMARAN NAIR (SR.) RESPONDENTS: 1. THE PRINCIPAL, SREE VIDYADHIRAJA HOMEOPATHIC MEDICAL COLLEGE, NEMOM P.O., THIRUVANANTHAPURAM. 2. THE SECRETARY, VIDYADHIRAJA VIDYA SAMAJAM, (MANAGER, SREE VIDYADHIRAJA HOMEOPATHIC MEDICAL COLLEGE), NEMOM P.O., THIRUVANANTHAPURAM. 3. PRINCIPAL, SECRETARY TO GOVERNMENT, HEALTH & FAMILY WELFARE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 4. THE CONTROLLING OFFICER, SREE VIDYADHIRAJA HOMEOPATHIC MEDICAL COLLEGE, (PRINCIPAL, GOVT. HOMEOPATHIC COLLEGE, IRANIMUTTOM, TRIVANDRUM). 5. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF HEALTH & FAMILY WELFARE, GOVT.SECRETARIAT, THIRUVANANTHAPURAM. R3 TO R5 BY GOVERNMENT PLEADER SRI.T.T.MUHAMMED R2 BY STANDING COUNSEL SRI.N.NANDAKUMARA MENON THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX(W.P.(C)NO.19769/2006) PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE ORDER OF APPOINTMENT DATED 9.12.2002. EXT.P1(a) TRUE COPY OF THE ORDER DATED 20.7.2004. EXT.P2 TRUE COPY OF THE APPOINTMENT ORDERS (3 NOS.) EXT.P3 TRUE COPY OF THE ORDER NO.G.O.(Rt)NO.945/04/H&FWD DATED 27.3.2004. EXT.P4 TRUE COPY OF THE LETTER DATED 31.7.2004. EXT.P5 TRUE COPY OF THE LETTER NO.42422/J2/2004/H&FWD DATED 4.1.2006. EXT.P6 TRUE COPY OF THE LETTER DATED 14.6.2006. EXT.P7 TRUE COPY OF THE PROCEEDINGS DATED 19.6.2006. EXT.P8 TRUE COPY OF THE LETTER DATED 21.6.2006 EXT.P9 TRUE COPY OF THE REPRESENTATION DATED 3.1.2006. EXT.P10 TRUE COPY OF THE RELEVANT EXTRACT OF THE AMENDED REGULATIONS. EXT.P11 TRUE COPY OF THE ORDER DATED 20.7.2004. EXT.P12 TRUE COPY OF PROPOSAL SENT BY PRINCIPAL & CONTROLLING OFFICER DATED 19.7.05. EXT.P13 TRUE COPY OF STATEMENT. EXT.P14 TRUE COPY OF LETTER DATED SENT BY PRINCIPAL - FIRST RESPONDENT. EXT.P15 TRUE COPY OF MINUTES OF MEETING. EXT.P16 TRUE COPY OF LETTER DATED 17.3.2005 OF FOURTH RESPONDENT. EXT.P17 TRUE COPY OF APPOINTMENT ORDER OF DR.SMITHA.M. EXT.P18 TRUE COPY OF RELEVANT PAGES OF REGISTER. EXT.P19 TRUE COPY OF GOVT. ORDER DATED 2.2.2005. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// AHZ/ K.T.SANKARAN, J. -------------------------------------------- W.P.(C) NO. 19769 OF 2006 -------------------------------------------- Dated this the 16th June, 2008 JUDGMENT The petitioner states that he was appointed as Lecturer in Sree Vidyadiraja Homeopathic Medical College, as per Ext.P1 order of appointment dated 9.12.2002. His grievance is that his appointment was not regularized and he was not paid any salary from the date of appointment. He also points out that for the period from 1.9.2002 to 3.9.2003, six persons were appointed as Guest Lecturers/Tutors in different departments and even their appointments were regularized by the Government, as can be seen from the documents produced along with the Writ Petition. 2. In the counter affidavit filed on behalf of respondents 3 and 5, the stand taken is that “the entry cadre post of the teaching staff in the Homoeo Medical Colleges in the State, is the Tutor post and not the Lecturer and so the petitioner's appointment said to be made by the management overlooking the existing special rules, directly to the post of Lecturer is not a proper one”. The various averments made in the counter affidavit would indicate that the Principal of the College did not produce the relevant records before the Government in spite of repeated directions and instructions. In paragraph 14 of the counter affidavit it is stated that W.P.(C) NO.19769 OF 2006 :: 2 :: after the execution of the Direct Payment Agreement signed on 21.6.2003, the management has no exclusive power to appoint a person in the College without there being a selection by the Selection Committee. The learned counsel for the petitioner points out that the appointment of the petitioner was on 9.12.2002, much prior to the Direct Payment Agreement. Learned Government Pleader submits that the date of commencement of the Direct Payment Agreement is 21.6.2002. 3. Along with I.A.No.13828 of 2007, the petitioner has produced Ext.P12 to Ext.P19. Ext.P13 is the letter from the Principal and Controlling Officer, Government Homeopathic Medical College, Thiruvananthapuram (respondent No.4) to the Secretary to Government. In the statement attached to the letter, as against the name of the petitioner, Dr.Reghu. D, it is shown that he was appointed as Tutor with effect from 1.9.2003 and was appointed as Lecturer with effect from 1.9.2006. These details do not tally with Ext.P1 order of appointment. 4. In view of the conflicting and irreconcilable statements and contentions, it is not proper to decide the Writ Petition on the merits in one way or other. Normally, in such a case, a direction should be issued to the appropriate authority to consider the matter and to arrive at a correct conclusion after referring to the appointment orders and all other relevant W.P.(C) NO.19769 OF 2006 :: 3 :: documents. If the stand taken by the Government that the petitioner could not be appointed as Lecturer and could be appointed only as Tutor is correct and it is also true that the petitioner was actually appointed and was working as Tutor, a question would arise whether his service could be regularized as a Tutor from the date of his actual appointment and for the period during which he was actually working. This is also a matter to be considered by the Government after affording an opportunity for hearing to the petitioner and the respondents concerned. A decision in this regard shall be taken within a period of two months. If the Government finds that the appointment of the petitioner as Tutor could be regularized, nothing should stand in the way of the Government in disbursing the salary of the petitioner forthwith. If it is found that the petitioner was regularly appointed and that he is entitled to get salary, it shall be disbursed immediately. Reserving all the rights of the petitioner to defend his stand and put forward a contention before the Government that even his initial appointment as Lecturer was in order, the Writ Petition is disposed of, leaving open all the questions for consideration by the Government. (K.T.SANKARAN) Judge ahz/