IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 30TH NOVEMBER 2009 / 9TH AGRAHAYANA 1931 WP(C).No. 24060 of 2008(L) -------------------------------------- PETITIONER: ------------------- DR.JAYAKUMAR.R., CIVIL SURGEON, GENERAL HOSPITAL, THIRUVANANTHAPURAM. BY ADVS. MR.A.V.RAMAKRISHNA PANICKER, SMT.R.SEEMA. RESPONDENTS: ------------------------ 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF HEALTH SERVICES, HEALTH SERVICES DEPARTMENT, THIRUVANANTHAPURAM. 3. DR.KRISHNAN.T.K.S., CIVIL SURGEON, DISTRICT HOSPITAL, KANHANGAD, KASARGODE. 4. DR.MADHAVA DAS.C., CIVIL SURGEON, GOVERNMENT MENTAL HEALTH CENTRE, KOZHIKKODE. 5. DR.RAVIKUMAR.K., CIVIL SURGEON, GOVERNMENT DISTRICT HOSPITAL, KOLLAM. 6. DR.KAMAL HUSSAIN, CIVIL SURGEON, GOVERNMENT MENTAL HEALTH CENTRE, KOZHIKKODE. 7. DR.BHASI.E.V., CIVIL SURGEON, TALUK HEAD QUARTERS HOSPITAL, MAVELIKKARA, ALAPPUZHA. 8. DR.PRABHASH.M.D., CIVIL SURGEON, GOVERNMENT DISTRICT HOSPITAL, KOLLAM. R1 & R2 BY GOVERNMENT PLEADER MR. P. NANDAKUMAR, R5 BY ADV. MR.C.UNNIKRISHNAN (KOLLAM). THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/11/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.24060/2008-L: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE G.O.(P).NO.28/2005/H & FWD DTD. 05/02/2005, KERALA HEALTH SERVICES (MEDICAL OFFICERS) SPECIAL RULES. EXT.P.2: COPY OF THE G.O.(P).NO.01/2007/H & FWD DTD. 02/01/07 AMENDMENT TO THE SPECIAL RULES. EXT.P.3: COPY OF THE PROVISIONAL LIST FOR PLACEMENT OF MEDICAL OFFICERS IN THE SPECIALITY “PSYCHIATRY”. EXT.P.4: COPY OF THE G.O.(RT).NO.1788/2008/H & FWD DTD. 19/05/2008, PUBLISHING FINAL SENIORITY LIST OF MEDICAL OFFICERS IN THE ADMINISTRATIVE & SPECIALITY CADRES. EXT.P.4.A: COPY OF THE FINAL SENIORITY LIST FOR PLACEMENT OF MEDICAL OFFICERS IN THE SPECIALITY “PSYCHIATRY”. EXT.P.5: COPY OF THE PROCEEDINGS NO.EA4-59546/1985/DHS DTD. 28/05/1985. EXT.P.6: COPY OF THE PETITION DTD. 08/06/2007 SUBMITTED TO THE R.1. BY 62 MEDICAL OFFICERS WITH THE SPECIALITY QUALIFICATION OF POST GRADUATE DEGREE. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. ANTONY DOMINIC, J. ------------------------- W.P.(C.) No.24060 of 2008 (L) --------------------------------- Dated, this the 30th day of November, 2009 J U D G M E N T The petitioner entered service as an Assistant Surgeon on 03/01/1987. The qualifications, the petitioner possesses is MBBS, DPM and MD (Psychiatry). He is now working as a Civil Surgeon in the Government General Hospital, Thiruvananthapuram. 2. In this writ petition, the main challenge raised is against Clause 5D of the Appendix to the Kerala Health Services (Medical Officers) Special Rules, 2005, which provides that the maximum points that can be awarded by the point system to a person shall be limited to 50. According to the petitioner, having regard to the qualifications, which he possesses and the length of service he has rendered, he is entitled to 80 points. It is stated that despite the above, by virtue of Clause 5D of the Special Rules, he has been awarded only 50 points, and that as a result thereof, he looses credit for his qualification and the substantial part of the service that he has rendered. It is also stated that by virtue of Clause 5D, WP(C) No.24060/2008 -2- the Diploma holders will get an advantage over the Graduates like him. 3. On the other hand, answer of the respondents is that the Special Rules have been introduced by the State Government in pursuance to its policy to improve the general medical care that is available to the public in the State. It is stated that by virtue of Rule 4, once options have been received, in terms of the Special Rules select list of those who are placed in each cadre, shall be prepared and published. It is stated that the criterion for preparation of the select list shall be the points awarded for the total qualifying service in the Health Service Department. It is stated that Clause 5 provides the points to be awarded in the manner as stated therein, and that by Clause 5D, the maximum point that can be awarded has been limited at 50. It is stated that by virtue of this clause, after a long length of service rendered by both the Degree holders and Diploma holders, once they acquire 50 points based on the point system adopted in the Special Rules, both the Degree holders and Diploma holders are equated. It is stated that thereafter, further seniority in the speciality cadre will be determined based on Clause 5E, which provides that if there are more than one person with 50 points for a WP(C) No.24060/2008 -3- post / category, their seniority for placement will be determined based on their seniority in the feeder category. 4. As already seen, the grievance of the petitioner is only against Clause 5D, which limits the maximum points at 50. Evidently, the Special Rule in question is a piece of subordinate legislation and reflects a policy decision taken by the Government of Kerala regarding the constitution of speciality cadre in the Health Services. The scope of review of a subordinate legislation and a policy decision by the Government has been explained by the Apex Court in Maharashtra State Board of Secondary and Higher Secondary Education and another v. Paritosh Bhupesh Kurmarsheth, etc. (AIR 1984 SC 1543), where it has been held thus :- “-----. It would be wholly wrong for the court to substitute its own opinion for that of the legislature or its delegate as to what principle or policy would best serve the objects and purposes of the Act and to sit in judgment over the wisdom and effectiveness or otherwise of the policy laid down by the regulation-making body and declare a regulation to be ultra vires merely on the ground that, in the view of the Court, the impugned provisions will not help to serve the object and purpose of the Act. So long as the body entrusted with the task of framing the rules or regulations acts within the scope of the authority conferred on it, in the sense WP(C) No.24060/2008 -4- that the rules or regulations made by it have a rational nexus with the object and purpose of the Statute, the court should not concern itself with the wisdom or efficaciousness of such rules or regulations. It is exclusively within the province of the legislature and its delegate to determine, as a matter of policy, how the provisions of the Statute can best be implemented and what measures, substantive as well as procedural would have to be incorporated in the rules or regulations for the efficacious achievement of the objects and purposes of the Act. It is not for the Court to examine the merits or demerits of such a policy because its scrutiny has to be limited to the question as to whether the impugned regulations fall within the scope of the regulation-making power conferred on the delegate by the Statute. -------- -------- -----. The Court cannot sit in judgment over the wisdom of the policy evolved by the legislature and the subordinate regulation- making body. It may be a wise policy which will fully effectuate the purpose of the enactment or it may be lacking in effectiveness and hence calling for revision and improvement. But any draw backs in the policy incorporated in a rule or regulation will not render it ultra vires and the Court cannot strike it down on the ground that in its opinion, it is not a wise or prudent policy, but is even a foolish one, and that it will not really serve to effectuate the purposes of the Act. The legislature and its delegate are the sole repositories of the power to decide what policy should be pursued in relation to matters covered by the Act and there is no scope for interference by the Court unless the particular provision impugned before it can be said to suffer from any legal infirmity, in the sense of its being wholly beyond the scope of the regulation-making power or its being inconsistent with any of the provisions of the WP(C) No.24060/2008 -5- parent enactment or in violation of any of the limitations imposed by the Constitution. ---------- ---------- In the light of what we have stated above, the constitutionality of the impugned regulations has to be adjudged only by a three-fold test, namely (1) whether the provisions of such regulations fall within the scope and ambit of the power conferred by the statute on the delegate; (2) whether the rules/regulations framed by the delegate are to any extent inconsistent with the provisions of the parent enactment and lastly (3) whether they infringe any of the fundamental rights or other restrictions or limitations imposed by the Constitution.” 5. A Division Bench of this Court in Pankajaksy & Others v. George Mathew & Others (1987 (2) KLT 723), the relevant portion of which reads as under : “Thus, the rule made under a statute by an authority delegated for the purpose can be challenged on the ground (1) that it is ultra vires of the Act; (2) it is opposed to the fundamental rights; (3) it is opposed to other plenary laws. To ascertain whether a rule is ultra vires of the Act, the Court can go into the question (a) whether it contravenes expressly or impliedly any of the provisions of the statute; (b) whether it achieves the intent and object of the Act; and (c) whether it is “unreasonable” to be manifestly arbitrary, unjust or partial implying thereby want of authority to make such rules.” 6. In this case the petitioner has no case that special rule in question is ultra vires any statute, on the basis of which the rule WP(C) No.24060/2008 -6- has been framed. The petitioner has also no case that the rule is opposed to any other plenary laws. The only contention raised is that clause 5-D of the Special Rules is unreasonable in as much as it seeks to limit the points awarded at 50, irrespective of whether the Medical Officer concerned is possessing a Post Graduate Degree or a Diploma and irrespective of the length of service that is rendered by the Medical Officer. Therefore, the only question that need examination by this court is whether such a provision is unreasonable or not. If the contention is found to be acceptable, necessarily, the same will be opposed to the fundamental rights of the petitioner and in which event one of the three grounds that is indicated by the Apex Court and this Court in the aforesaid judgments for successfully impugning the provisions in the subordinate legislation is attracted. 7. As already stated, the justification offered by the Government to sustain clause 5-D of the Special Rules is that, they are seeking to equate both diploma holders and degree holders after a prescribed period of service, in spite of the difference in the qualification that are possessed by them. According to the respondents, the diploma holders matured by longer experience WP(C) No.24060/2008 -7- attain qualitatively equivalence with degree holders and it is on that bass, they have decided to cap the point at 50 and thus equalize them at that level. In my view, this logic now offered by the respondents cannot be said to be arbitrary or unreasonable one to call for the interference of this court, exercising powers under Article 226 of the constitution of India. 8. As pointed out by the Apex Court in Maharashtra State Board of Secondary and Higher Secondary Education and another v. Paritosh Bhupesh Kumarsheth (1984 SC 1543), this court is not concerned about the wisdom of the policy as reflected in the special rules and is not expected to substitute its court's view in place of the views of the Government. In the light of the aforesaid principles laid down by the apex court I am not persuaded to think that any of the vitiating circumstances could be made out by the petitioner to successfully impugn clause 5(d) of the Special Rules. Therefore the writ petition fails and is dismissed. (ANTONY DOMINIC) JUDGE jg