Kerala High Court
Dr. P.M. Suresh Kumar vs The State Of Kerala on 28 July, 2009
Author: S.Siri Jagan
Bench: S.Siri Jagan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 7719 of 2006(R)
1. DR. P.M. SURESH KUMAR,
... Petitioner
Vs
1. THE STATE OF KERALA,
... Respondent
2. THE CALICUT UNIVERSITY,
3. THE MANAGER,
4. DR.P.P. RAGHAVAN,
For Petitioner :SRI.N.NANDAKUMARA MENON (SR.)
For Respondent :SRI.S.GOPAKUMARAN NAIR, SC, CALICUT UTY
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :28/07/2009
O R D E R
S. Siri Jagan, J.
=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-=
W. P (C) Nos. 7719 & 20956 of 2006
and 16556 of 2007
=-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=
Dated this, the 28th July, 2009.
J U D G M E N T
In all these cases, the petitioners are challenging the same order of the Government of Kerala. The petitioner in W.P(C) No. 20956/2006 is the Manager of Vaidyaratnam Ayurveda College, Thykattussery, Ollur (hereinafter referred to as 'the college') and the petitioners in the other writ petitions are teachers of the said college. The manager is aggrieved by the refusal on the part of the Government to approve the 13+1 department system adopted by the college in accordance with the norms prescribed by the Central Council of Indian Medicine ('the council' for short) and the teachers are aggrieved since they would be deprived of service benefits in accordance with the 13+1 department system if that system is not approved by the Government. Therefore, I have heard and am disposing of these writ petitions together. First, I shall consider W.P (C) No. 20956/2006 and dispose of the other cases in the light of the decision in the former case.
W.P(C) No. 20956/2006
2. The college is an aided Ayurveda College, to which the Indian Medicine Central Council Act, 1970 (hereinafter referred to as 'the Act'), is applicable. Formerly, the college was following the 7+1 department system prevailing as per the norms of the Central Council of Indian Medicine (hereinafter referred to as 'the Council') prior to 1996. In 1996, the Council revised the norms for Ayurveda Colleges in the country and stipulated a 13+1 department system as mandatory. Immediately thereafter, the Government of Kerala, by Ext. P1 G.O(Ms) No. 143/96/H & FWD dated 19-3-1996, revised the W.P.C. No. 7719/06 etc. -: 2 :- staff pattern of all the Government Ayurveda Colleges in the State in accordance with such norms prescribed by the Council sanctioning a staff pattern as per the 13+1 department system. But, the Government, notwithstanding their duty to do so, did not direct the aided colleges in the State to follow suit. On 11-5-1999, the visitors of the Council visited the college and by Ext. P2 letter dated 22-7- 1999 informed the University of Calicut, to which the college is affiliated, that permission is granted to the college to conduct Ayurvedacharya course, with an intake of 30 students, subject to the curing of the deficiencies stated therein, the first of which was that the college has only 8 departments, whereas as per norms of the Council, 14 departments should be established in each Ayurveda College. For fear of withdrawal of recognition, the College- management decided to implement the 14 department system and by letter dated 19-7-2000 sought permission from the Government for the same. The Government did not respond to the request of the college. Anticipating sanction, the college implemented the 14 department system and invited options from the existing teachers regarding choice of departments, and staff were distributed to the departments on the basis of options received pursuant thereto. Ext. P3 dated 30-5-2000 is the order accepting options of lecturers. The Council, by Ext. P4 letter dated 20-8-2001, while granting permission to the college to admit 40 students to the Ayurvedacharya course for the year 2001-2002, pointed out to the University of Calicut that the college has not provided teaching staff in accordance with the 14 department system, which the college could not do without approval from the Government, the college being an aided college and salary of the teachers and staff is being paid by the Government. But still the Government did not approve the 14 department system in the college. In reply to Ext. P4, the college informed the Council that proposals for creation of the posts were forwarded to the W.P.C. No. 7719/06 etc. -: 3 :- Government, orders in which regard is expected shortly. The Board of studies of the University, in its meeting held on 24-4-2001, resolved to regularise the 13+1 department system in the college. The Faculty of Ayurveda in its meeting held on 20-9-2001, also resolved to approve the same. The Board of Studies, on 24-4-2001 approved the syllabus also for the courses accordingly. The Academic Council in its meeting held on 6-10-2001, approved the minutes of the Faculty of Ayurveda dated 20-9-2001 and that of the Board of Studies dated 24-4-2001. By Ext. P6 dated 20-3-2001, the University conveyed to the college, the approval of the Vice Chancellor dated 25-1-2001 for the 13+1 department system. By Ext. P7 dated 14-2-2005, the sanction of the Vice Chancellor for distribution of teaching staff in the 13 departments, subject to the concurrence of the Government, was conveyed to the College, the 14th being the sanskrit department for which no separate distribution is required as the same continues as in the 8 department system. By Ext. P8 letter dated 25-2-2005, the college again requested the Government for approval of the 13+1 department system implemented in the college from 1-7-2000. Again, the Government did not respond to the same.
3. While so, the post of Professor in the Department of Salakyathanthra of the college became vacant on 30-4-2003. The 2nd respondent, Dr. M.G. Ramachandran, who possessed a post-graduate degree in Salakyathanthra and whose lien was retained in that department by Ext. P3, was promoted to that vacancy by Ext. P9 dated 26-5-2003, although the 3rd respondent, Dr. P.P. Raghavan was senior to the 2nd respondent in the category of lecturers, since he did not, at that time, have the post-graduate qualification mandatory for holding the post of Professor, he having passed M.D only on 30-8- 2003. The 3rd respondent filed a petition to the University against the promotion of the 2nd respondent . The sub-committee of the W.P.C. No. 7719/06 etc. -: 4 :- Syndicate, by Ext. P10 dated 5-11-2004, resolved to reject the petition. Pursuant thereto, the University, by Ext. P11 dated 6-11- 2004, approved the promotion granted to the 2nd respondent with effect from 28-5-2003. Against the same, the 3rd respondent filed Ext. P12 petition dated 10-5-2005 before the Government and moved this Court by filing W.P(C) No. 36089 of 2004, in which by Ext. P13 judgment, this Court directed the Government to consider and dispose of Ext. P12 petition, which was styled as a revision petition although no revision petition lie under any provision of law. By Ext. P14 order, G.O(Rt) No. 341/2006/H&FWE dated 2-2-2006, the Government allowed the petition filed by the 3rd respondent and set aside Ext. P9 order promoting the 2nd respondent, on the ground that the introduction of the 13+1 department system was without sanction from the Government and is therefore irregular. Aggrieved by Ext. P14 order, the college has filed W.P(C) No. 20956/2006 seeking the following reliefs:
"i) a writ of certiorari quashing/setting aside Ext.P-14 order.
ii) a writ of mandamus to the Ist respondent to take up the Application of the petitioner for approval of the 13+1 Department System introduced with effect from 1-7-2000 and to issue final orders in the matter."
4. The contention of the petitioner is that non-implementation of the norms of the Council entail withdrawal of recognition of the college by the Council. The Government is aware of the necessity to comply with the norms as is revealed by the fact that the Government promptly implemented the same in the Government Ayurveda Colleges immediately after the new norms were introduced by the Council. Despite approval of the introduction of the new system, by the University and several requests in that regard to the Government, they did not take any steps to approve the same, despite their W.P.C. No. 7719/06 etc. -: 5 :- statutory duty to ensure that all colleges in Kerala conform to the norms prescribed by the Council. The petitioner points out that in W.P(C) No. 11157/2004 (C) filed by one Dr. V.N. Prasanna, her contention that the 13+1 department system has not been validly implemented in the college had been rejected by this Court upholding the contention of the petitioner that the 13+1 department system was introduced in 2001.
5. The first respondent-Government of Kerala has filed a counter affidavit supporting the impugned order. Their basic contention as contained in paragraphs 2, 3 and 12 of the counter affidavit are as follows:
"2. It is submitted that the Central Council of Indian Medicine constituted under Indian Medicine Central Council Act, 1970 is the institution responsible for laying down and maintaining the uniform standards of education and regulating the practice in Ayurveda Medical Education all over India. The Central Counsel of Indian Medicine has revised the norms for the functioning of Ayurveda Colleges and prescribed 13 Department systems as basic minimum standard for the functioning of Ayurveda Medical Colleges in India. Prior to this 7 Department system was functioning in all Ayurveda Colleges in the state including that the Petitioner's. Based on the revised norms Government of Kerala as per G.O.(Ms) 143/96/H&FWD dtd. 19.3.1996 have introduced 13 Department system in all Government Ayurveda Colleges in the state. The Department system started functioning with effect from 20.1.1998. The 13 Department system has not been introduced in Vaidyaratnam Ayurveda College, Ollur. As stated by the petitioner in para 1 the Vaidyaratnam Ayurveda College, Ollur is covered by the Direct Payment Scheme introduced by the Government as per G.O.(Ms) No.95/85/HD dated, 6.5.1985. Hence Government is the appropriate authority to sanction Department system and distribution of teaching staff with the approval of University since the introduction of Department system as per Central Council of Indian Medicine norms involves additional financial commitment by way of salaries to the teaching staff and non-teaching staff of the college. The petitioner has no authority to take an arbitrary and suo moto action for the introduction of Department system as per Central Council of Indian Medicine norms without taking Government into confidence.
3. The introduction of 14 Department system and W.P.C. No. 7719/06 etc. -: 6 :- redistribution of teaching staff were an internal arrangement by the management of Vaidyaratnam Ayurveda College, Ollur so as to satisfy the norms prescribed by the Central Council of Indian Medicine. Government is the appropriate authority to sanction 14-Department system and consequential re distribution of teaching staff with the approval of University of Calicut. As per clause No. (i) in the terms and conditions for Direct Payment Scheme (introduced in Vaidyaratnam Ayurveda College, Ollur as per G.O.(Ms) No. 95/85/HD dtd. 6.5.85) the educational agency that runs the Ayurveda College shall obtain prior sanction of Government for introducing new courses in the institutions besides getting University Affiliation/approval. In this case, Government have not sanctioned the 13/14 Department system in Vaidyaratnam Ayurveda College, Ollur till date. Even the approval of University of Calicut for the introduction of 13-Department systems and re distribution of teaching staff was received only on 14-2-2005 (exbt.p7). While hearing the 3rd respondent as per the direction of Hon. High Court in the judgment dtd. 2.6.05 in W.P(C).No. 36089 of 2004 Government came to know that 13 Department system has been introduced in VAC, Ollur without obtaining Government sanction.
xx xx xx
12. Department system as per Central Council of Indian Medicine consists of 14 Departments including sanskrit with standard minimum number of teaching staff in various categories. Department system and minimum number of teaching staff in each Department prescribed by Central Council of Indian Medicine are not separate. 14 Departments and prescribed number of teaching staff constitute the Department system. Constitution of Department system completes only when prescribed number of teaching staff are appointed in each Department. It is submitted that though the Department system as Central Council of Indian Medicine norms was introduced in Government Ayurveda Colleges in the state as per G.O.(Ms) 143/96/H&FWD dtd. 19.3.1996, this could be implemented only on 20-1-1998 consequent on the finalization of special rules and distribution of teaching staff in 13 Departments based on their option of Department. The University of Calicut has accorded sanction for the distribution of teaching staff only on 14.2.2005 as far as Vaidyaratnam Ayurveda College is concerned. The proposal for the implementation of the Department system is under the consideration of 1st respondent."
The additional respondents 4 and 5, teachers of the college, who got themselves impleaded in the writ petition, also have filed a common W.P.C. No. 7719/06 etc. -: 7 :- counter affidavit supporting the findings regarding introduction of the 13+1 department system in Ext. P14.
6. I have considered the rival contentions in detail.
7. The introduction of the new norms with the 13+1 department system as basic minimum standard for the functioning of Ayurveda Medical Colleges in India and the primacy of the norms prescribed by the Council are not disputed by the Government. The necessity for complying with the standards prescribed by the Council is also not disputed by the Government as is evidenced by the fact that the Government has promptly implemented the same in Government Ayurveda Colleges with effect from 19-3-1996. Their only contention is that the college is covered by the Direct Payment Scheme introduced by order dated 6-5-1985 and since introduction of the new system involves additional financial commitment by the Government, the college cannot implement the system without sanction from the Government.
8. In order to appreciate the contentions of the parties, it is necessary to advert to two important Sections of the Act relevant for our purposes, which are Sections 21 and 22. The said Sections read as follows:
"21. Withdrawal of recognition:- (1) When upon report by the inspector or the visitor, it appears to the Central Council--
(a) that the courses of study and examination to be undergone in, or the proficiency required from candidates at any examination held by, any University, Board or medical institution, or
(b) that the staff, equipment, accommodation, training and other facilities for instruction and training provided in such University, Board or medical institution or in any college or other institution affiliated to the University, do not conform to the standard prescribed by the Central Council, the Central Council shall make a representation to that effect to the Central Government.W.P.C. No. 7719/06 etc. -: 8 :-
(2) After considering such representation, the Central Government may send it to the Government of the State in which the University, Board or medical institution is situated and the State Government shall forward it along with such remarks as it may choose to make to the University, Board or medical institution, with an intimation of the period within which the University, Board or medical institution may submit its explanation to the State Government.
(3) On the receipt of the explanation or, where no explanation is submitted within the period fixed, then, on the expiry of that period, the State Government shall make its recommendations to the Central Government.
(4) The Central Government, after making such further enquiry, if any, as it may think fit, may, by notification in the Official Gazette, direct that an entry shall be made in the appropriate Schedule against the said medical qualification declaring that it shall be a recognised medical qualification only when granted before a specified date, or that the said medical qualification if granted to students of a specified college or institution affiliated to any University shall be recognised medical qualification only when granted before a specified date or, as the case may be, that the said medical qualification shall be recognised medical qualification in relation to a specified college or institution affiliated to any University only when granted after a specified date.
22. Minimum standards of education in Indian medicine:- (1) The Central Council may prescribe the minimum standards of education in Indian medicine, required for granting recognised medical qualifications by Universities, Boards or medical institutions in India.
(2) Copies of the draft regulations and of all subsequent amendments thereof shall be furnished by the Central Council to all State Governments and the Central Council shall, before submitting the regulations or any amendment thereof, as the case may be, to the Central Government for sanction, take into consideration the comments of any State Government received within three months from the furnishing of the copies as aforesaid.
(3) Each of the Committees referred to in clauses (a)(b) and
(c) of sub section (1) of section 9 shall, from time to time, report to the Central Council on the efficacy of the regulations and may recommend to the Central Council such amendments thereof as it may think fit."
As is clear from Section 22, the norms are laid down after considering the views of the State Government also on the same. Under Section W.P.C. No. 7719/06 etc. -: 9 :- 21, non-conformance with the standards prescribed by the Council entails withdrawal of recognition by the Central Government on the representation by the Council in that regard. Under that Section, the State Government is entrusted with the duty to ensure that the medical institutions in the State conform to the standards and it is on their recommendation that the Central Government takes decision on the withdrawal of recognition. The primacy of such central bodies under central statutes, overriding prescriptions by the State Government, has also been recognised by the Supreme Court and the High Court in several decisions, albeit with reference to other similar statutes. As late as in 2009, a Full Bench of this Court has in Vikram Sarabhai E. Trust and B.Ed. College v. University of Calicut, 2008(2) KLT 1027 held that once the Central Council grants recognition, the University or the State Government cannot override the same, with reference to the National Council of Teacher Education Act. Earlier, with reference to the same, a Division Bench of this Court has in University of Calicut v. NCTE, AIR 2004 Kerala 295 held as follows:
""NCTE has given directions to all the institutions affiliated to maintain the standards prescribed in the norms including the pupil-teacher strength. The contention raised by the petitioners that the University Act and various other Acts and Rules framed by the State Government were existing before the NCTE came into force, and therefore, directions issued by NCTE to such institutions are not binding, cannot be accepted. To keep up the standards of teacher education centres, Act empowers NCTE to issue directions for teaching the teachers which is a higher professional and sensitive subject. With the new development in the world, concept of school education technology and teacher training institutes must have the facility and modern infrastructure to train the teachers to get optimum results. Therefore, one cannot be satisfied with old methods. Being a Central Legislation whenever there is conflict with State enactment, Central Act will prevail. This issue is clear from the decision of the Supreme Court in (2002) 8 SCC 288: (AIR 2002 SC 36750 (supra). The matter is further made clear with regard to the application of Indian Medical Council Act, 1958 in Thirumuruga Kirupananda Variyar Thavathiru Sundara Swamigal W.P.C. No. 7719/06 etc. -: 10 :- Meduical Education & Charitable Trust v. State of Tamil Nadu (1996) 3 SCC 15: (AIR 1996 SC 2384) and with regard to application of all India Council for Technical Education Act, 1987 in State of T.N. v. Adhiyaman Educational & Research Institute (1995) 4 SCC 104: (1995 AIR SCW 2179) and in Jaya Gokul Education Trust v. Commissioner & Secretary to Government Higher Education Department, Thiruvananthapuram, AIR 2000 S C 1614. In all these cases, with regard to identical Acts in relation to technical education, the Supreme Court held that Central Act will prevail. Further, the Act itself was introduced to improve Teacher Education system. As far as B.Ed. Is concerned, it is to train the teachers who have to train our future generation.
It is also submitted that NCTE Act was implemented in all India level. Challenges made in the Act and directions of NCTE were dismissed by various High Courts. The decision of the Madhya Pradesh High Court in National Council for Teachers Education v. Chouhan Educaton Society, AIR 1999 Madh. Prd. 206 was cited as an example. It is also submitted that in Karnataka with regard to aided colleges where salary is paid under UGC Scheme, the Scheme was implemented. Therefore, we are of the opinion that the Act and its provisions and regulations framed by the NCTE cannot be interfered by this Court and the Teacher Education Institutions are bound to follow the NCTE Act. No value contention is raised to show that the regulations issued by the NCTE are unconstitutional or arbitrary."
(Underlining supplied) In this case, unlike in the other central legislations, an added responsibility has been cast on the State Government as an intermediary body in the matter of ascertaining whether the medical institution is guilty of non-conformance with the norms prescribed by the Council and the Central Government is to act on the basis of the recommendations of the State Government in that regard. As I have already stated, the Government of Kerala has recognised the necessity of implementing the 13+ 1 department system by doing the needful in the Government Ayurveda Colleges as early as in 1996 itself. When it is the bounden duty of the State Government to see that all the Ayurveda Medical Colleges in the State introduce the 13+1 department system in their colleges, I am at a loss to understand how the State Government can take the stand that since W.P.C. No. 7719/06 etc. -: 11 :- they have not sanctioned the same, the college cannot introduce the system, even though under the Direct Payment Scheme, the college has to obtain sanction for appointing staff involving financial commitment. I am of opinion that even though under the Direct Payment Scheme the college has to obtain approval of additional staff involving financial commitment, the Government has no choice in the matter, since the norms prescribed by the Council are mandatorily to be complied with by the college, which has to be ensured by the State Government also. Both the college and the State Government are statutorily bound by the norms prescribed by the Council. The 1st respondent do not even dispute the averment of the college that they had as early as on 19-7-2000 requested for sanction for the same from the Government. The State cannot take a stand that although it is their statutory duty, it is their discretion to sanction the new system and therefore the college cannot introduce the new system without their sanction as it involves additional financial commitment. I am of the opinion that it ill-fits a Government who swears by the Rule of law, and whose policy it is to promote the educational standards in the State, to take such a counter-productive contention. The same is also a step-motherly attitude to the students of the aided Ayurveda Colleges insofar as the students of Government colleges are already enjoying the fruits of the new system introduced by the Government themselves promptly in Government colleges. The Government is duty bound to ensure standards of education not only in Government colleges, but also in all colleges including aided colleges. In fact, as early as on 2-2-2006, a learned Judge had considered an argument of another teacher that the 13+1 department system has not been implemented in the college, in W.P (C) No. 11157 of 2004 and the learned Judge in the judgment in that writ petition held as follows:
W.P.C. No. 7719/06 etc. -: 12 :-
"7. Even though the persuasive submissions of Mr. K.P. Dandapani, learned counsel for the petitioner cannot be described as without any appeal, I am unable to accept the learned counsel's submission that the 14 department system has not been introduced in the third respondent's college. Of course, the introduction of the 14 department system was subject to the concurrence of the Government and the Government 's concurrence is yet to be issued. But the contention of the management that on the eve of the introduction of the 14 department system, options were called for from the Lecturers and Dr. Shaleena opted for appointment to the Rasasasthra and Bhaishajakalpa Department and the further contention that the petitioner opted to remain in her original department is not seen denied through the reply affidavit. The documents Exts. R3(c), R3
(d) and R3(e) supports the contention of the management that as a matter of fact the 14 department system was introduced in the college. Significantly the Government has not passed any formal orders declining approval to the 14 department system. . . . . ."
The Government was a party to the writ petition. I am unhappy that despite being alerted by this Court about the necessity to grant concurrence for the introduction of the 13+1 department system, even after 3 = years, the Government is still only thinking about the same. Such lethargy on the part of the Government, whose statutory duty it is to see that the norms prescribed by the Council is implemented by all the Ayurveda Colleges in the State, to say the least, is unacceptable to a judicial mind. Therefore, I am of opinion that the 1st respondent was statutorily bound to sanction the 13+1 department system and consequent staff pattern in the aided Ayurveda Colleges at the same time the same was introduced in the Government Ayurveda Colleges by Ext. P1 with effect from 19-3- 1996. In fact, instead of waiting for a request for such sanction, the Government themselves ought to have directed the college to implement the new system as prescribed by the Council along with the Government Ayurveda Colleges in 1996 itself. However, I am inclined to limit the same with effect from 1-7-2000 as requested in Ext. P8 letter from the College to the Government and with effect from which date the college actually introduced the new system. W.P.C. No. 7719/06 etc. -: 13 :-
Accordingly, I direct the 1st respondent to approve the establishment of the 13+1 department system and the staff pattern approved by the University by Ext. P7, in the college, with effect from 1-7-2000. However, monetary benefits arising therefrom, wherever applicable, would be payable to the teaching staff only from the date of Ext. P7, namely, 14-2-2005. But wherever other service benefits like promotion are available to the teachers, the same shall be given to them with effect from 1-7-2000 without corresponding monetary benefits up to 14-2-2005. The Government shall issue orders in this regard within one month from the date of receipt of a copy of this judgment. Since Ext. P14 has been passed only on the ground that the 13 + 1 department system was introduced without sanction from the Government, Ext. P14 is quashed.
W.P(C) No. 7719/2006
The petitioner in this writ petition Dr. P.M. Sureshkumar, is promoted as Professor in Salyathanthra Department of the College, in the college, which was approved with effect from 2-5-2005, by the University by Ext. P3 order dated 25-10-2005. Such promotion was in accordance with the 13+1 department system. Since Ext. P 5 order would stand in the way of getting benefits of such promotion, he has challenged Ext. P5 order of the Government, which is Ext. P14 in W.P(C) No. 20956/2006, which I have quashed in that writ petition. Therefore, separate orders are not necessary in this writ petition. Accordingly, W.P(C) No. 7719/2006 is disposed of in terms of the judgment in W.P(C) No. 20956/2006.
W.P(C) No. 16556/2007
The petitioner in this writ petition , Dr. Jayakhar T.G, is a W.P.C. No. 7719/06 etc. -: 14 :- lecturer in the Roganidan Department of the College as per the 13+1 department system. The post of professor of the Department fell vacant on 1-4-2007. In view of Ext. P5 order, which is the same as Ext. P14 in W.P(C) No. 20956/2006, he is not being promoted to that vacancy is his grievance, and therefore he challenges that order. He has already retired from service during the pendency of this writ petition on 31-3-2008. Since I have quashed Ext. P5 order, there would be a direction to the 3rd respondent to consider the claim of the petitioner for promotion to the post of Professor in Roganidan Department and pass orders, which, if in favour of the petitioner, shall be forwarded to the University of Calicut for approval within one month from the date of receipt of a copy of this judgment. If it is found that he is entitled to such promotion he shall notionally be given the same retrospectively without monetary benefits, so that he can get his retirement benefits revised accordingly.
The writ petitions are disposed of as above.
S. Siri Jagan, Judge.
Tds/