IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 10TH NOVEMBER 2009 / 19TH KARTHIKA 1931 WA.No. 2420 of 2009() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.29658/2009 Dated 21/10/2009 .................... APPELLANT(S): PETITIONER ------------------------ DR.VIJAYENDRAN P., AGED 40 YEARS, S/O. PADMAKARAN, MEENATHERIL PADEETTATHIL, CHINGOLI P.O., ALAPPUZHA DISTRICT. BY ADV. SRI.B.RENJITHKUMAR RESPONDENT(S): RESPONDENTS -------------------------- 1. UNION OF INDIA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF HEALTH & FAMILY WELFARE, NEW DELHI. 2. STATE MISSION DIRECTOR NATIONAL RURAL HEALTH MISSION-NRHM-STATE HEALTH & FAMILY' WELFARE SOCIETY,STATE PROGRAM MONITORING SUPPORT UNIT STATE & HEALTH SERVICES,GENERAL HOSPITAL JN.THIRUVANANTHAPURAM-695035. ADV. SRI.T.P.M.IBRAHIM KHAN,ASST.SOLICITOR FOR R1 SRI.M.AJAY,SC,NATIONAL RURAL HEALTH MIS FOR R2 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 10/11/2009, ALONG WITH W.A.No.2479/2009 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: KURIAN JOSEPH & C.T.RAVIKUMAR, JJ. ----------------------------------------- W.A.Nos.2420, 2479, 2494 & 2502 of 2009 ----------------------------------------- Dated this the 10th day of November, 2009 JUDGMENT Kurian Joseph, J. Appellants are graduates in Homeopathy. They applied for the post of Medical Officer (Homeopathy) on contract basis. The project is set up by the National Rural Health Mission. The qualification prescribed by the Mission is BHMS. The simple question is whether the appellants, who are originally diploma holders in Homeopathy and who had the benefit of lateral entry in the degree course and who have thus taken a decree in Homeopathy and who have been awarded the degree - graded BHMS, can also be stated to be graduates in Homeopathy. We do not think that the question requires any deep analysis to conclude that the appellants are also graduates in Homeopathy. That position is clear when we peruse the degree certificates awarded to them by the University. However, the well meaning steps taken by the National Rural Health Mission are also to be appreciated. In W.A.Nos.2420, 2479, 2494 & 2502 of 2009 -:2:- the past, they had faced several litigations with regard to the equivalence of the prescribed qualification. In order to avoid all those confusions only, this time the National Rural Health Mission prescribed the qualification as BHMS. As we have held in connected cases, the employer is absolutely free to prescribe his own qualification in the absence of rules statutorily framed. This being a project and there being no statutory rules for such recruitment the Mission is free to prescribe the BHMS, which is a degree in Homeopathy, as the qualification. As the learned Standing Counsel points out BHMS is the direct degree whereas graded BHMS is a degree obtained after obtaining a diploma and thereafter through a lateral entry in the degree course. But for all legal purposes a graded degree is also a degree in BHMS. Therefore, unless the graded BHMS is expressly excluded from the notified qualification, those graded BHMS degree holders, who have duly applied, are also entitled to participate in the selection process. Therefore, we allow all these writ appeals, set aside the judgment of the learned single Judge and direct the National Rural Health Mission, Kerala to permit the appellants W.A.Nos.2420, 2479, 2494 & 2502 of 2009 -:3:- and similarly situated graded BHMS degree holders, who have submitted valid applications, to participate in the selection for the year 2009. The needful steps for the interview and the further process shall be taken without further delay. (KURIAN JOSEPH, JUDGE) (C.T.RAVIKUMAR, JUDGE) ahg. KURIAN JOSEPH & C.T.RAVIKUMAR, JJ. --------------------------- W.A.Nos.2420, 2479, 2494 & 2502 of 2009 ---------------------------- JUDGMENT 10th November, 2009