IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 15TH SEPTEMBER 2008 / 24TH BHADRA 1930 WP(C).No. 1832 of 2008(R) --------------------------------------- PETITIONER: -------------------- K.VENUGOPAL, SENIOR SUPERINTENDENT, DR.PADIAR MEMORIAL HOMOEOPATHIC MEDICAL COLLEGE, CHOTTANIKKARA, ERNAKULAM (DIST). BY ADV. SRI.K.RADHAKRISHNAN (SR.) SRI.K.R.RAJKUMAR SRI.SAJEEV KUMAR K.GOPAL RESPONDENTS: ------------------------- 1. THE STATE OF KERALA, REP. BY THE SECRETARY, HEALTH & FAMILY WELFARE DEPARTMENT, THIRUVANANTHAPURAM. 2. THE PRINCIPAL & CONTROLLING OFFICER, GOVERNMENT HOMOEOPATHIC MEDICAL COLLEGE, THIRUVANANTHAPURAM. 3. THE DIRECTOR, DEPARTMENT OF HOMOEOPATHY, EAST FORT, THIRUVANANTHAPURAM BY GOVERNMENT PLEADER SMT. T.B.REMANI - R1-3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/09/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.1832/2008R APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE GO (MS) NO.310/80/HD DTD. 27/11/1980. EXT.P2(A): COPY OF THE WORK ALLOTMENT ORDER NO.3 DTD. 20/07/1981. EXT.P2(B): COPY OF THE WORK ALLOTMENT ORDER NO.14 DTD. 01/03/1984. EXT.P3: COPY OF THE LETTER NO.8065/E1/87/DH DTD. 27/12/1989. EXT.P4: COPY OF THE STATEMENT SHOWING THE FIXATION AS PER G.O.(P) NO.515/85/FIN. DTD. 16/09/1985. EXT.P5: COPY OF THE STATEMENT SHOWING THE FIXATION AS PER G.O.(P) NO.480/89/FIN. DTD. 01/11/1989. EXT.P6: COPY OF THE LETTER NO.7995/E1/91/DHDTD. 11/06/1991. EXT.P7: COPY OF THE STATEMENT SHOWING THE FIXATION AS PER G.O.(P) NO.600/93/FIN. DTD. 25/09/1993. EXT.P8: COPY OF THE ORDER NO.DPM/300/97 DTD.30/10/1998. EXT.P9: COPY OF THE ORDER NO.DPM/313/99 DTD. 01/12/1999. EXT.P10: COPY OF THE ORDER NO.GO(P) 515/85/FIN DTD. 16/09/85. EXT.P11: COPY OF THE SERVICE HISTORY FROM 1978 TO 01/01/2000 OF THE PETITIONER. EXT.P12: COPY OF THE G.O.(MS) NO.100/2000/H & FWD DTD.25/04/2000. EXT.P13: COPY OF G.O.(MS) NO.154/97/H&FWD DTD. 06/05/1997. EXT.P14: COPY OF THE LETTER NO.4320/C1/2000/GHMCT DTD. 27/04/2002. EXT.P15: COPY OF THE SALARY DETAILS FOR THE MONTH OF MARCH, 2002 ISSUED BY THE PRINCIPAL TO THE SUB-TREASURY MULAMTHURUTHY. Kss ..2/- ...2..... WPC.NO.1832/2008 R EXT.P16: COPY OF THE SALARY STATEMENT FOR THE MONTH OF JUNE, 2002 ISSUED BY THE PRINCIPAL TO THE SUB-TREASURY MULAMTHURUTHY. EXT.P17: COPY OF THE LETTER NO.54736/J2/2004/H&FWD DTD. 2/2/05. EXT.P18: COPY OF THE LETTER NO.C1/2004/GHMCT DTD. 09/02/2005. EXT.P19(A): COPY OF STATEMENT SHOWING PAY REVISION AS PER G.O.NO.3000/98/FIN DTD. 20/11/1998 W.E.F. 01/01/2000. EXT.P19(B): COPY OF STATEMENT SHOWING THE PAY REVISION OF THE NON-TEACHING STAFF. EXT.P20: COPY OF THE GO(MS) NO.186/90/H&FWD DTD.25/03/1996. EXT.P21: COPY OF THE G.O.(MS) NO.241/86/H&FWD DTD. 02/12/1986. EXT.P22: COPY OF THE LR.NO.56263/J2/92/H&FWD DTD. 21/10/1995. EXT.P23: COPY OF THE GO(MS) NO.511/95/H&FWD DTD. 10/11/1995. EXT.P24: COPY OF THE GO(MS) NO.184/2003/H&FWD DTD.03/09/2003. EXT.P25: COPY OF THE Lr.NO.42422/J2/2004/H&FWD DTD. 30/08/2005. EXT.P26(A): COPY OF THE CERTIFICATES SHOWING PASSING OF ACCOUNT TEST. EXT.P26(B): COPY OF THE CERTIFICATE SHOWING THE PASSING OF MOP TEST. EXT.P27: COPY OF THE Lr.NO.79/AC.BII/04 DTD. 14/01/2004 ISSUED BY M.G.UNIVERSITY. EXT.P28: COPY OF THE LIST SUBMITTED BY THE PRINCIPAL FOR CONSIDERATION FOR PROMOTION. EXT.P29: COPY OF THE GO(P) NO.93/76/H.EDN.DTD. 26/06/1976. EXT.P30: COPY OF THE G.O.(RT) NO.2324/2003/H&FWD DTD. 05/08/2003. EXT.P31: COPY OF THE G.O.(RT) NO.3643/2003/H&FWD DTD. 24/12/2003. Kss ..3/- ...3... WPC.NO.1832/2008 R EXT.P32: COPY OF THE Lr.NO.54736/J2/2004/H&FWD DTD. 04/07/2005. EXT.P33: COPY OF THE Lr.NO.3560/C1/2004/GHMCT DTD. 11/01/2006. EXT.P34: COPY OF THE ORDER NO.2338/C1/99/GHMCT DTD. 13/12/2000. EXT.P35: COPY OF THE JUDGMENT IN WP.NO.11427/2005 DTD.28/03/2007. EXT.P36: COPY OF THE G.O.(RT) NO.3674/2007/H&FWD DTD. 27/10/2007. EXT.P37: COPY OF THE ORDER NO.23/DPMHMC/2007 DTD. 31/12/2007 ISSUED BY THE MANAGEMENT. EXT.P38: RELEVANT NOTES OF THE FILE. EXT.P39: COPY OF G.O.(MS) NO.203/2006/H&FWD DTD.22/09/2006. EXT.P40: COPY OF THE STATEMENT PREPARED BY THE PRINCIPAL AND CONTROLLING OFFICER WHICH CONTAINS DETAILS OF NON-TEACHING STAFF OF DIFFERENT HOMEO COLLEGES AS ON 13/11/2000. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss ANTONY DOMINIC, J ----------------------------------------------------------- W.P.(C).No.1832/2008 ----------------------------------------------------------- Dated this the 15th day of September, 2008 JUDGMENT In 1978, petitioner was appointed as an Accountant in Dr. Padiyar Memmorial Homoeopathic Medical College, Chottanikkara and that was approved, as is seen from Exts.P1 to P3. According to the petitioner, on completion of 10 years he was given grade promotion and thereafter on completion of 20 years Higher Grade Promotion was also given. Referring to Ext.P8, petitioner contends that, in 1998 he was promoted as Junior Superintendent and in November 1999 he was again promoted as Senior Superintendent. 2. Direct Payment System was introduced in the college as per Ext.P12 order dated 25.4.2000. Subsequently, staff fixation was effected as per Ext.P14, in which the petitioner was fixed as an L.D. Clerk, instead of Senior Superintendent. Aggrieved by Ext.P14, petitioner WP(c)No.1832/2008 2 preferred representations and finally he approached this court and pursuant to the judgment in WP(c) No.33470/2004, his claim was considered by the Government and by Ext.P17, the same was rejected. 3. Ext.P17 was again challenged before this Court in WP(c).No.11427/2005. That writ petition was disposed of by Ext.P35. In that judgment, it was directed that in the event of the petitioner approaching the Government within a period of one month, producing certificates contradicting the contentions of Government in Ext.P17 that the petitioner was not testqualified, the matter will be re-examined. According to the petitioner, producing Ext.P26 series of certificates, petitioner filed representations. 4. The matter was accordingly reconsidered and finally by Ext.P36, the Government rejected the petitioner's claim for fixation as Senior Superintendent. The reason for rejection of the claim stated in Ext.P36 is that, in terms of the staff fixation order there was no post of Junior WP(c)No.1832/2008 3 Superintendent or Senior Superintendent in the college and that therefore, the petitioner is entitled for fixation only as LD Clerk. It is challenging Exts.P14 and P36 that this writ petition has been filed. 5. The main contention of the learned Sr.Counsel for the petitioner is that the staff fixation effected by Ext.P14 with effect from 1.1.2000 is erroneous in as much as the same was done only on 27.4.2002 and that as on that date the petitioner had acquired the test qualifications evidenced by Ext.P26 certificates, which shows that he had passed Account Test Lower, Account Test Higher and the Manual of Office Procedure Test. In effect, the contention is that fixation of 1.1.2000 in Ext.P4 is arbitrary. However, this contention of the learned Sr. Counsel for the petitioner is only to be rejected for the reason that direct payment system was introduced in that college with effect from 1.1.2000 as is evident from Ext.P12. If that be so, staff fixation has to be effected with effect from the date on WP(c)No.1832/2008 4 which the direct payment system has been effected. If so the fixation of 1.1.2000 in Ext.P14 cannot be objected. That apart, Petitioner is not challenging the effective date of Direct Payment System and if so, the effective date in Ext.P14 also has to be accepted by him. As on the date when the staff fixation was effected, the petitioner had not admittedly acquired the test qualifications referred to above, as is seen from Ext.P26 certificate itself. If that be so, the fixation given to the petitioner, on the ground that he had not attained test qualifications as on 1.1.2000 cannot be faulted. 6. What remains is the contention raised by the Sr. counsel for the petitioner on the ground of discrimination. In this context he has referred me to Exts.P12,P13,P20 and P25. In my view, of the aforesaid documents, the only document which may be of assistance to the petitioner is Ext.P25, which has been issued in the case of Sree Vidyadiraja Homoeopathic Medical College, yet another WP(c)No.1832/2008 5 Homoeopathic Medical College, as Dr. Padiyar Memmorial Homoeopathic Medical College, where petitioner is employed. Referring to clause 4 of Ext.P25, it is argued that on introduction of direct payment system in so far as Sri. Vidyadiraja Homoeopathic Medical College is concerned the employer therein were given exemption from passing departmental test for 3 years from the date of the Government Order dated 3.9.2003. Learned counsel for the petitioner contends that the case of the petitioner is to be considered similarly with the employees of Sree Vidyadiraja Homoeopathic Medical College and that on that basis the petitioner is also entitled to exemption as was given in Ext.P25 and that if exemption is allowed, the petitioner had acquired test qualifications within the time. 7. A reading of Ext.P36 Government Order does not show that the contention now raised by the counsel for the petitioner was adverted to by the Government while rejecting the petitioner's claim. The counter affidavit filed in WP(c)No.1832/2008 6 this case also does not explain as to whether the petitioner is entitled to parity of treatment with the employees of Sree Vidyadiraja Homoeopathic Medical College. In view of this I feel that the claim raised by the petitioner for parity with the employees of Sree Vidyadiraja Homoeopathic Medical College is a matter which should be considered. 8. In order to enable the Government to consider the matter as above, I direct that the petitioner shall move the Government with an appropriate representation. If the petitioner moves Government by filing the representation as above, within 4 weeks from today, the first respondent shall consider the matter afresh in the light of Ext.P25 and other Government orders and Rules, if any, within 6 weeks thereafter. Writ Petition is disposed of as above. ANTONY DOMINIC JUDGE vi. WP(c)No.1832/2008 7