Kerala High Court
Dr.Vijayan K. Malayil vs State Of Kerala on 31 July, 2008
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
TUESDAY, THE 16TH DAY OF DECEMBER 2014/25TH AGRAHAYANA, 1936
WP(C).No. 21632 of 2006 (A)
--------------------------------------------
PETITIONER(S) :
-------------------------
1. DR.VIJAYAN K. MALAYIL, PROFESSOR,
DR.PADIYAR MEMORIAL HOMOEO COLLEGE, CHOTTANIKARA.
2. DR.M.G.RADHESH, PROFESSOR (ANATOMY),
DR.PADIYAR MEMORIAL HOMOEO COLLEGE, CHOTTANIKARA.
3. DR.S.VIJAYALAKSHMI, TUTOR,
DEPARTMENT OF PHYSIOLOGY AND BIOCHEMISTRY,
ATHURASHRAMAM N.S.S. HOMOEOPATHIC MEDICAL COLLEGE,
KOTTAYAM.
4. DR.K.S.RAJESWARY,TUTOR,
DEPARTMENT OF SURGERY,ATHURASHRAMAM N.S.S.,
HOMOEOPATHIC MEDICAL COLLEGE, KOTTAYAM.
BY ADVS.SRI.SHAJI THOMAS PORKKATTIL
SRI.BINU PAUL
RESPONDENT(S) :
----------------------------
1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY,
HEALTH FAMILY WELFARE DEPARTMENT, THIRUVANANTHAPURAM.
2. SECRETARY, CENTRAL COUNCIL OF HOMOEOPATHY,
JAWAHARLAL NEHRU BHARATHIYA CHIKITSA AVUM,
HOMOEOPATHIC ANUSANDHAN BHAVAN,
61-65 INSTITUTIONAL AREA, OPP.`D' BLOCK, JANAKPURI,
NEW DELHI-110 058.
3. PRINCIPAL CONTROLLING OFFICER,
HOMOEOPATHIC EDUCATION, GOVT.HOMOEOPATHIC MEDICAL
COLLEGE, IRAIMUTTOM, THIRUVANANTHAPURAM-9.
4. MAHATMA GANDHI UNIVERSITY,
REPRESENTED BY ITS REGISTRAR, MAHATMA GANDHI UNIVERSITY,
PRIYADARSHINI HILLS, ATHIRAMPUZHA, KOTTAYAM.
..2/-
..2..
WP(C).No. 21632 of 2006 (A)
--------------------------------------------
* ADDITIONAL R5 IMPLEADED
5. DR.PRAKASH, S/O.RAMADASA SHENOI,
TUTOR, DR.PADIYAR MEMORIAL HOMEO COLLEGE,
CHOTTANIKKARA, RESIDING AT ADITHYA SREE,
PATTANAKKADU P.O.,CHERTHALA.
* ADDITIONAL R5 IS IMPLEADED AS PER ORDER DATED 31.07.2008 IN
I.A.NO.9515 OF 2008.
** ADDITIONAL R6 IMPLEADED
6. SECRETARY, ALL KERALA HOMOEOPATHIC POST,
GRADUATE TEACHERS ASSOCIATION, REG NO.318/10,
POURNAMI, 5/2133, WAYANAD ROAD, KOHIKODE 673 001.
** ADDITIONAL R6 IS IMPLEADED AS PER ORDER DATED 16.12.2014 IN
I.A.NO.16815 OF 2014.
& ADDITIONAL R7 IMPLEADED
7. DR.JAYASREE, TUTOR,
DEPARTMENT OF PHARMACY,
DR. PADIYAR MEMORIAL HOMOEO COLLEGE, CHOTTANIKARA.
& ADDITIONAL R7 IS IMPLEADED AS PER ORDER DATED 16.12.2014 IN
I.A.NO.7094 OF 2010.
R1 BY GOVERNMENT PLEADER SRI.P.V.ELIAS
R2 & R3 BY ADV.SRI.P.K.RAMKUMAR, S.C
BY ADVS. SRI.CHERIAN VARGHESE
SRI.M.V.RAMACHANDRAN THAMPI
R4 BY ADV. SRI.VARUGHESE M.EASO, S.C
ADDL.R5 BY ADV. SRI.NIDHI BALACHANDRAN
ADDL.R6 BY SRI.P.RAVINDRAN (SENIOR ADVOCATE)
ADV. SRI.SREEDHAR RAVINDRAN
ADDL.R7 BY ADV. SRI.D.KISHORE
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 16-12-2014, ALONG WITH W.P.(C).NO.24538 OF 2006 AND
CONNECTED CASES THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
Msd.
WP(C).No. 21632 of 2006 (A)
------------------------------------------
APPENDIX
PETITIONER(S)' EXHIBITS
-------------------------------------
EXT.P1: TRUE PHOTOCOPY OF CERTIFICATE OF DOCTOR OF MEDICINE,
DATED 04.02.2006, ISSUED FROM THE DR.BABASAHAB
AMBEDKAR MARATHWADA UNIVERSITY TO THE 1ST PETITIONER.
EXT.P2: TRUE COPY OF CERTIFICATE OF DOCTOR OF MEDICINE,
DATED 04.02.2006 ISSUED TO 2ND PETITIONER.
EXT.P3: TRUE COPY OF CERTIFICATE OF DOCTOR OF MEDICINE,
27.07.2006 ISSUED TO 3RD PETITIONER.
EXT.P4: TRUE COPY OF CERTIFICATE OF DOCTOR OF MEDICINE,
DATED 07.01.2006 ISSUED TO 4TH PETITIONER.
EXT.P5: TRUE PHOTOCOPY OF THE SECOND SCHEDULE OF
HOMOEOPATHY CENTRAL COUNCIL ACT, 1973 SHOWING THE
RECOGNIZED MEDICAL QUALIFICATIONS IN HOMOEOPATHY
GRANTED BY INSTITUTIONS IN INDIA.
EXT.P6: TRUE PHOTOCOPY OF PROSPECTUS FOR ADMISSION OF POST
GRADUATE DEGREE COURSE IN HOMOEOPATHY FOR
THE YEAR 2005-2006.
EXT.P7: TRUE PHOTOCOPY OF THE RELEVANT PORTION OF THE
PROCEDURE FOR SELECTION OF POST GRADUATE COURSE
(REGULAR AND EXTERNAL) IN HOMOEOPATHY FOR 2005-2006
PUBLISHED BY THE DIRECTORATE OF AYURVED,
MAHARASHTRA STATE.
EXT.P8: TRUE PHOTOCOPY OF CERTIFICATE OF REGISTRATION ISSUED
TO THE 1ST PETITIONER BY THE TRAVANCORE-COCHIN MEDICAL
COUNCIL, THIRUVANANTHAPURAM.
EXT.P9: TRUE PHOTOCOPY OF CERTIFICATE OF REGISTRATION ISSUED
TO THE 2ND PETITIONER BY THE TRAVANCORE-COCHIN MEDICAL
COUNCIL, THIRUVANANTHAPURAM.
EXT.P10: TRUE PHOTOCOPY OF CERTIFICATE OF REGISTRATION,
DATED 2.08.2005 ISSUED TO THE 3RD PETITIONER BY THE
TRAVANCORE-COCHIN MEDICAL COUNCIL,
THIRUVANANTHAPURAM.
EXT.P11: TRUE PHOTOCOPY OF CERTIFICATE OF REGISTRATION,
DATED 23.06.2005 ISSUED TO THE 4TH PETITIONER BY THE
TRAVANCORE-COCHIN MEDICAL COUNCIL,
THIRUVANANTHAPURAM.
WP(C).No. 21632 of 2006 (A)
------------------------------------------
EXT.P12: TRUE COPY OF THE COMMUNICATION DATED 25.05.2000 ISSUED
BY THE SECRETARY, CENTRAL COUNCIL OF HOMOEOPATHY.
EXT.P13: TRUE COPY OF THE COMMUNICATION DATED 08.12.2005 OF THE
SECRETARY TO CENTRAL COUNCIL OF HOMOEOPATHY.
EXT.P14: TRUE COPY OF THE ORDER DATED 13.01.1998 OF THE
UNIVERSITY OF KERALA.
EXT.P15: TRUE COPY OF THE COMMUNICATION DATED 29.01.1998.
EXT.P16: TRUE COPY OF THE COMMUNICATION DATED 05.08.2005.
EXT.P17: TRUE COPY OF G.O(MS.)152/2002 DATED 21.03.2002.
EXT.P18: TRUE PHOTOCOPY OF G.O.(MS.)553/2001 DATED 20.03.2001.
EXT.P19: TRUE PHOTOCOPY OF REGULATION RELATING TO
QUALIFICATIONS AND OTHER CONDITIONS OF APPOINTMENTS OF
TEACHERS OF HOMOEOPATHY COLLEGE, ISSUED BY THE
MAHATMA GANDHI UNIVERSITY.
EXT.P20: TRUE COPY OF THE FULL TEXT OF SECOND SCHEDULE TO
HOMOEOPATHY COUNCIL ACT, 1973.
EXT.P21: TRUE COPY OF THE G.O.(MS)NO.105/95/ H & FWD
DATED 22.04.1995.
EXT.P22: TRUE PHOTO COPY OF THE RELEVANT PAGES OF THE MINUTES
OF THE ANNUAL MEETING OF THE FACULTY OF HOMOEOPATHY
HELD ON 11.02.2009.
EXT.P23: TRUE COPY OF THE MINUTES OF THE MEETING OF
THE ACADEMIC COUNCIL OF KERALA UNIVERSITY HELD
ON 18.05.2009.
EXT.P24: TRUE COPY OF THE PROPOSAL DATED 24.12.2009 OF
THE 3RD RESPONDENT ADDRESS OF THE SECRETARY, GOVT. OF
KERALA.
EXT.P25: TRUE COPY OF THE G.O.(MS)NO.105/95/ H & FWD
DATED 22.01.1995 OF THE GOVERNMENT OF KERALA.
RESPONDENT(S)' EXHIBITS & ANNEXURES
---------------------------------------------------------------
EXT.R1(A): ORIGINAL COPY OF G.O(P)NO.79/2001/H & FWD, DATED 19.03.2001.
EXT.R6(A): RELEVANT EXTRACT OF THE GOVERNMENT ORDER
DATED 13.01.2012.
WP(C).No. 21632 of 2006 (A)
------------------------------------------
ANNEXURE-1: TRUE COPY OF HOMOEOPATHY (POST GRADUATE DEGREE COURSE)
REGULATIONS 1989.
ANNEXURE-2: TRUE COPY OF THE G.O.(P)NO.48/2012/FIN. DATED 13.01.2012 OF
THE 1ST RESPONDENT.
//TRUE COPY//
P.A.TO JUDGE.
Msd.
C.K.ABDUL REHIM, J
============================
W.P.(C).No.21632 OF 2006,
W.P.(C).No.24538 OF 2006,
W.P.(C).No. 9573 OF 2009,
W.P.(C).No.7752 OF 2011
AND
W.P.(C).No.146 OF 2012
==============================
Dated this the 16th day of December, 2014
JUDGMENT
Since a common issue is involved in all these 5 cases they were considered together and disposed of through this judgment. Reference to parties and exhibits contained hereunder are in the order in which they are contained in W.P.(C).No.2163/2006.
2. The petitioners in W.P.(C).No.21632/2006 are Professors and Tutors working in Dr.Padiyar Memorial Homoeo College, Chottanikara and in Athurasramam N.S.S. Homoeo Medical College, Kottayam, which are colleges under private sector, aided by the Government and coming under direct payment scheme of the Government. The petitioners in W.P.(C). No.24538/2006 and W.P.(C).No.9573/2009 are also Professors and Tutor W.P.(C).No.21632 OF 2006, W.P.(C).No.24538 OF 2006, W.P.(C).No. 9573 OF 2009, 2 W.P.(C).No.7752 OF 2011 AND W.P.(C).No.146 OF 2012 of the Dr.Padiyar Memorial Homoeo Medical College. Petitioners in W.P.(C).No.7752/2011 are Tutors of Athurasramam NSS Homoeo Medical College. The above said 4 cases are referred hereinafter as the 'first 4 cases'.
3. Challenge in the first 4 cases are basically against, Note 1(a) appended to the table below Clause (3) of Ext.P19 Regulations prescribed by Mahatma Gandhi University, which provides the qualifications and method of appointment of Teachers of Homoeopathy Colleges, to the extent it does not recognizes any external Post Graduate Courses (MD in Homoeopathy) having duration of less than 3 years. It is contended that the said provision is contrary to Section 33 (1)(j) and Schedule 2 of the Homoeopathy Central Council Act 1973. The petitioners are seeking directions against respondents 1 & 3 to grant them the scale of pay fixed by the 'All India Council for Technical Education (AICTE)', with effect from the date on which they acquired Post Graduate W.P.(C).No.21632 OF 2006, W.P.(C).No.24538 OF 2006, W.P.(C).No. 9573 OF 2009, 3 W.P.(C).No.7752 OF 2011 AND W.P.(C).No.146 OF 2012 qualifications. Based on such contention the relief sought for is to the extent of declaring entitlement for directing payment of the revised scale of pay under the AICTE scheme with effect from the date on which the Government have introduced revision of pay by extenting the benefit of AICTE scales to the Teaching Staff of Homoeopathy Medical Colleges.
4. W.P.(C).No.146/2012 is filed by a private practitioner in Homoeopathic Medicine, seeking to quash Ext.P5 produced therein, which is a letter issued by the 'Central Council of Homoeopathy' directing the State Government to treat regular or external degree of MD (Hom) as equivalent and par with regular degrees for all the purposes including service matters and for fixing scale of pay and for allowing the AICTE scale of pay to teachers appointed in any Departments holding MD(Hom) qualification. The petitioner in the said case seeks declaration that the external MD(Hom) acquired under W.P.(C).No.21632 OF 2006, W.P.(C).No.24538 OF 2006, W.P.(C).No. 9573 OF 2009, 4 W.P.(C).No.7752 OF 2011 AND W.P.(C).No.146 OF 2012 Regulation XIV of Homoeopathy (PG Degree Course) Rules 1989 cannot be treated as equivalent to regular MD (Hom) acquired by admission and study under Regulation 4 to 10 of the said Rules.
5. The petitioners in the first 4 cases are holding P.G. Degree of MD(Hom) obtained from Universities out side Kerala after undergoing 2 years external study. It is stated that, out of 12 subjects in Homoeopathic Medicine, PG Courses are available within the State only in 5 subjects and the total number of seats available for such course within the State is only 60. It is contended that the petitioners got admission for the MD courses in Universities out side the State on the basis of Entrance Examinations conducted by the respective State Governments and all of them had possessed the requisite qualification stipulated under the prospectus for such courses. According to the petitioners, the competent authority to recognize the course is the Central Council of W.P.(C).No.21632 OF 2006, W.P.(C).No.24538 OF 2006, W.P.(C).No. 9573 OF 2009, 5 W.P.(C).No.7752 OF 2011 AND W.P.(C).No.146 OF 2012 Homoeopathy, constituted under Section 3 of the Homoeopathy Central Council Act, 1973 (hereinafter referred to as the 'Central Act' for short). As per Section 13 of the Central Act, Medical qualification granted by any University, Board or other Medical Institutions in India which are included in the 2nd Schedule of the Act should be recognized as a medical qualification for the purpose of the said Act. It is stated that the MD(Hom) Post Graduate Degree obtained by the petitioners in all the first 4 cases are courses included in the 2nd Schedule of the Central Act. Hence those degrees are recognized medical qualifications for all purposes. Ext.P12 is a letter issued by the Central Council to the Registrar of the University of Kerala and the University of Calicut intimating that the Executive Committee of the Central Council had resolved that the degree of MD(Hom) awarded by any University to regular and external candidates as per the Homoeopathy (PG Degree Course) W.P.(C).No.21632 OF 2006, W.P.(C).No.24538 OF 2006, W.P.(C).No. 9573 OF 2009, 6 W.P.(C).No.7752 OF 2011 AND W.P.(C).No.146 OF 2012 Regulations, if included in the 2nd Schedule of the Central Act are at par with regular degrees for all purposes, including service matters and that the Central Council had agreed with the said decision taken by the Executive Committee. Ext.P14 is produced to show that the 'Academic Council'2 of the University of Kerala had resolved to recognize the MD (Hom) Degree awarded to one Dr.P. Muraleedharan, which he had acquired through external study at the Rajastan University. In the resolution it is specifically stated that the MD (Hom) degree awarded through external study by the Rajastan University upto 15.11.1997 is recognised as equivalent to MD(Hom) degree of Kerala University. It is further pointed out that the recognition so granted was based on a judgment rendered by this court in OP No.6165/1999, dated 6.12.1999. In the said judgment this court observed that, power to recognize a degree as equivalent to any other degree vests with the University and in the W.P.(C).No.21632 OF 2006, W.P.(C).No.24538 OF 2006, W.P.(C).No. 9573 OF 2009, 7 W.P.(C).No.7752 OF 2011 AND W.P.(C).No.146 OF 2012 case of Dr.P. Muraleedharan the University had recognised the degree possessed by him as equivalent to MD(Hom) awarded by the University of Kerala. Since the MD (Hom) degree awarded by the Rajastan University was already recognized by the Central council by inclusion in the 2nd schedule of the Central Act, it is binding upon the Kerala University. Hence this court directed to grant revised scale of pay in the cadre of Professor to Dr. P. Muraleedharan.
6. As observed above, grievances voiced is regarding non-implementation of the revised scale of pay approved under the AICTE scheme on the basis that the qualification of MD(Hom) acquired by the petitioners are not recognised as equivalent qualification to the regular MD(Hom) courses. Specific challenge is against Ext.P19 Regulations formulated by the university prescribing qualifications and method of appointment of teachers in Homoeopathy Medical Colleges. Clause (3) of the said W.P.(C).No.21632 OF 2006, W.P.(C).No.24538 OF 2006, W.P.(C).No. 9573 OF 2009, 8 W.P.(C).No.7752 OF 2011 AND W.P.(C).No.146 OF 2012 Regulation prescribes qualification and method of appointment with respect to specific categories of teachers, including Principal, Professor, Reader, Lecturer and Tutor. Qualification prescribed therein with respect to such posts is a Post Graduate Degree in the subject concerned, obtained from any of the Universities in Kerala or from any other university recognized by the Universities in Kerala as equivalent. It prescribes that in the absence of persons having Post Graduate degree persons with bachelor degree in Homoeopathy acquired after undergoing regular course of study for 5= years will be considered. It further provides that, in the absence of degree holders, persons with Diploma awarded by the National Institute of Homoeopathy, Calcutta along with specified years of teaching experience will be considered. The impugned portion of Note 1(a) appended to the Table in Clause (3) of Ext.P19 provides that "external P.G. is also acceptable provided 3 years class attendance is the W.P.(C).No.21632 OF 2006, W.P.(C).No.24538 OF 2006, W.P.(C).No. 9573 OF 2009, 9 W.P.(C).No.7752 OF 2011 AND W.P.(C).No.146 OF 2012 minimum requirement for the P.G as in Kerala". It is mentioned in W.P.(C)No.2163/2006 that the Principal and Controlling Officer of the Government Homoeopathy Medical College Thiruvananthapuram had issued a letter to the Principal of Dr. Padiyar Memrial Homeopathic Medical College, Chottanikara to the effect that, the petitioners are not entitled to claim the scale of pay under AICTE scheme, because external P.G holders are not given AICTE scale in Government Colleges. It is stated therein that the external PG courses are not recognized by Universities in Kerala and such the degrees are not incorporated in the special rules framed by the Government, the Kerala State Homoeopathic Medical Colleges Service Rule 2001. Ext.P18 W.P.(C) No.7752/2011 is a letter issued by the Government to a Professor in Dr. Padiyar Memorial Homoeopathic College, stating that the regular PG and external PG are different in all respects including the period of study. It is W.P.(C).No.21632 OF 2006, W.P.(C).No.24538 OF 2006, W.P.(C).No. 9573 OF 2009, 10 W.P.(C).No.7752 OF 2011 AND W.P.(C).No.146 OF 2012 mentioned that external PG, which is a distant education course, cannot be treated in par with the regular PG and hence the request for sanctioning AICTE scale to teachers who got external MD (Hom) cannot be considered.
7. Challenge against the 'Note' impugned and against the consequential the denial of AICTE scale of pay is mainly based on the ground that it goes contrary to Section 13 of the Central Act, read with the entries contained in the 2nd Schedule of the said Act. The petitioners are also basing their contentions on the clarification issued by the Central council to the affect that MD(Hom) degree obtained by regular course and external course are equal and in par with. It is argued that, the Central Act being a legislation coming under Entry 66 of List 1 of Schedule VII of the Constitution of India, it will have overriding effect on any state legislations in the field or subject governed under the said entry. Therefore any regulation which is contrary or W.P.(C).No.21632 OF 2006, W.P.(C).No.24538 OF 2006, W.P.(C).No. 9573 OF 2009, 11 W.P.(C).No.7752 OF 2011 AND W.P.(C).No.146 OF 2012 repugnant to provisions of the Central Act cannot survive. Further it is pointed out that, the Government have approved the revised pay scale in the case of Dr.P. Muraleedharan who had obtained Post Graduate Degree of MD(Hom) through external course.
8. Learned Council appearing for the petitioners in first 4 case had pointed out that, in Exts.P22 and P23 decisions taken by the faculty of Homoeopathy and the Academic Council of the Kerala University it was resolved to recommend to the Government for recognizing all the degrees of MD(Hom) approved by the Central Council and included in the 2nd Schedule of the Central Act, as recognized degrees. Ext.P24 is a letter issued by the Principal and Controlling Officer of the Government Homoeopathic Medical College recommending to the Government to provide the benefit of the AICTE scale to teachers with MD(Hom) external degree, at least on a prospective basis. It is pointed out that, all the W.P.(C).No.21632 OF 2006, W.P.(C).No.24538 OF 2006, W.P.(C).No. 9573 OF 2009, 12 W.P.(C).No.7752 OF 2011 AND W.P.(C).No.146 OF 2012 petitioners were promoted considering the Post Graduate degrees acquired by them from Universities out side the State and denial of revision of the scale of pay under AICTE scheme is not legal and justifiable.
9. The Government in their counter affidavit (in W.P.(C).No.7752/2011) had contended that, the revision of pay scale under the AICTE scheme introduced by virtue of Government Order, dated 20.3.2001 is admissible only to Post Graduate degree holders. It is stated that as per the GO(MS) No.152/2002, dated 21.3.2002 the benefit was extended to teachers in private Homoeopathic Medical Colleges, coming under the direct payment scheme, with effect from 1.4.2002. But it is stated that, in the case of the petitioners they are external PG holders from universities out side the State of Kerala. As per GO (P) No.79/2001/H & FWD, dated 19.3.2001 the Government have framed Special Rules prescribing qualifications and method of appointment to various posts W.P.(C).No.21632 OF 2006, W.P.(C).No.24538 OF 2006, W.P.(C).No. 9573 OF 2009, 13 W.P.(C).No.7752 OF 2011 AND W.P.(C).No.146 OF 2012 in the Homoeopathic Medical Colleges. As per the said Rules the external PG is acceptable for promotion and for AICTE scale only subject to the condition that 3 years class attendance is the minimum requirement, as in Kerala. Since duration of the external PG is only 2 years, the petitioners are not eligible for AICTE scale of pay as per the existing Rules, is the contention.
10. In a statement filed on behalf of the Central Council for Homoeopathy (in W.P.(C) No.21632/2006) it is contended that, in view of the Homoeopathy P.G.Course M.D.(Hom) Regulations, 1989 an external candidate can be admitted to MD(Hom) course subject to certain conditions. It is stated that the Central Council had prescribed standards for conducting the courses for such external candidates. But it is mentioned that the Central Council had not prescribed any type of reservation for any category of candidates and the Regulation of the Central Council do not provide any kind W.P.(C).No.21632 OF 2006, W.P.(C).No.24538 OF 2006, W.P.(C).No. 9573 OF 2009, 14 W.P.(C).No.7752 OF 2011 AND W.P.(C).No.146 OF 2012 of reservation. It is mentioned that the state Government and the University concerned are free to make their own regulations prescribing reservation for different categories and the Central Council has no say in the matter. At the same time it is pointed out that the Executive Committee of the Central Council in its meeting held on 23.3.2006 had resolved that the MD(Hom) awarded to regular and external candidates are under the PG Degree Course Regulations, if it is included in the 2nd Schedule to the Central Act, and are at par with for all purposes including service matters. It is stated that this decision was intimated to the Universities in Kerala. According to them no legislation of the State Government will prevail over provisions of the Central Act.
11. It is evident that, provisions contained in the Kerala State Homoeopathic Medical College Service Rules, 2001, as well as Ext.P19 Regulations framed by the University prescribing qualifications and method of W.P.(C).No.21632 OF 2006, W.P.(C).No.24538 OF 2006, W.P.(C).No. 9573 OF 2009, 15 W.P.(C).No.7752 OF 2011 AND W.P.(C).No.146 OF 2012 appointment of Teachers, are identical. The impugned 'Note' contained under Clause (3) of the Regulations as well as relevant provisions in the Special Rules are similarly worded. The petitioners are challenging the 'Note' to the extent it stipulates that external PG Degree will be acceptable only if it is acquired through 3 year class attendance, as in Kerala. Clause 1(b) of the said 'Note' further prescribes that only the PG holders will be eligible for AICTE scale of pay, irrespective of the Department to which they belongs to. Non PGs will be entitled only to scale of pay followed under the State pattern. But there is a saving clause provided both under the Special Rules as well as under the Regulations to the effect that, nothing contained therein shall adversely affect any person who is a member of the service as on the date of coming into force of the said Rules/Regulations, in respect of any matter such as continuance in the post and promotion to higher W.P.(C).No.21632 OF 2006, W.P.(C).No.24538 OF 2006, W.P.(C).No. 9573 OF 2009, 16 W.P.(C).No.7752 OF 2011 AND W.P.(C).No.146 OF 2012 categories. Therefore it is contended that the petitioners in the first 4 cases, who were already promoted to the post of Professors and Readers on the basis of PG Degrees obtained by them from Universities out side Kerala or on the basis of their bachelor degrees may not be affected with respect to continuance in the post and with respect to promotions to higher categories. Still, based on challenges made against the 'Note' in question this court is inclined to consider the question of its validity.
12. Section 13 of the Central Act provides that, medical qualifications granted by any University, Boards or other Medical Institutions in India which are included in the 2nd Schedule shall be recognized as medical qualifications for the purpose of this Act.
(emphasis supplied).
It is not in dispute that the MD(Hom) acquired by the petitioners are included in the 2nd Schedule W.P.(C).No.21632 OF 2006, W.P.(C).No.24538 OF 2006, W.P.(C).No. 9573 OF 2009, 17 W.P.(C).No.7752 OF 2011 AND W.P.(C).No.146 OF 2012 formulated under Section 20 of the Central Act. The Central Council of Homoeopathy is entitled to prescribe minimum standards of education in Homoeopathy required for granting recognition to the courses conducted by Universities, Boards or Medical Institutions of India. So also, Section 33 of the Act confers power on the Central Government to make Regulations among other things with respect to prescribing courses and periods of study of practical training to be undergone, and the examinations and standards of proficiency in any University, Board or Medical Institution and also to provide the standards of staff, equipment, accommodation, training and other facilities for education in Homoeopathy. It is evident that in exercise of such powers the Central Government had framed the Homoeopathy (Minimum Standard of Education) Regulations 1983 and also the Homeopathy (PG Degree Course) MD (Hom) Regulations 1989.
W.P.(C).No.21632 OF 2006, W.P.(C).No.24538 OF 2006, W.P.(C).No. 9573 OF 2009, 18 W.P.(C).No.7752 OF 2011 AND W.P.(C).No.146 OF 2012
13. Question to be considered is as to whether the conditions stipulated under the Special Rules of the State Government and under Regulation formulated by the university are contrary or repugnant to the Central Legislation in any manner with respect to prescription of qualifications for appointment to various posts. From Section 13 it is evident that if any course is included in the 2nd Schedule of the Central Act, such course will be treated as recognized medical qualification for all purposes. But it cannot be contended that by virtue of excluding any particular medical qualification as not suitable for appointment to any post of teachers, the University or the State Government is in any manner unrecognizing or de-recognizing that qualification. In other words such exclusion will not render the particular qualification in any manner as not recognized. On the other hand, it only stipulates particular qualifications as eligibility criteria for appointment to certain specified W.P.(C).No.21632 OF 2006, W.P.(C).No.24538 OF 2006, W.P.(C).No. 9573 OF 2009, 19 W.P.(C).No.7752 OF 2011 AND W.P.(C).No.146 OF 2012 posts. The university derives power to frame such Regulations by virtue of the statute through which the respective universities are constituted. Section 58 of the Kerala University Act, 1974 prescribes that the teachers of colleges should possess such qualifications as may be prescribed by the Regulations. The impugned Regulations are formulated by virtue of power derived under the above said provision. There are identical provisions contained in the statutes of other universities. The legislative competence of such state enactments is derived from Entry 25 of the Concurrent list in the Constitution, which deals with the subject of education. Whereas, the Central Legislation does not contain any provision dealing with prescription of qualifications of teachers in the Universities, Boards or other Medical Institutions.
14. Standing Council appearing for the Central Council of Homoeopathy had brought to notice of this W.P.(C).No.21632 OF 2006, W.P.(C).No.24538 OF 2006, W.P.(C).No. 9573 OF 2009, 20 W.P.(C).No.7752 OF 2011 AND W.P.(C).No.146 OF 2012 court about the provisions contained in the Homoeopathy (Minimum Standard of Education) Regulation, 1983. In Annexure E to the Regulations the essential qualifications as well as desirable qualifications of Principal, Professors, Readers, Lectures etc. are provided. Annexure E is based on Regulation 11 which provides that the minimum qualifications and age for appointment of teaching staff of various course shall be in accordance with Annexure E. Proviso to Regulation 11 stipulates that, where service conditions of a staff of any Homoeopathic college have not been provided, the same shall be as per the prevailing service conditions in the affiliating universities. Therefore it is evident and clear that the service conditions with respect to staff of any Homoeopathic College can be provided by the affiliating Universities, subject to condition that it should confirm to the minimum standards prescribed under the Homoeopathy (Minimum Standard of Education) Regulations. Crucial W.P.(C).No.21632 OF 2006, W.P.(C).No.24538 OF 2006, W.P.(C).No. 9573 OF 2009, 21 W.P.(C).No.7752 OF 2011 AND W.P.(C).No.146 OF 2012 question to be decided is whether prescription of qualifications and method of appointment with respect to various posts in the colleges within Kerala, stipulated under Regulations framed by the respective universities or under the special Rules framed by the State Government will run contrary or repugnant to the Central Act or any of the Regulations framed thereunder. Argument is that once the qualification granted by any university is recognized as a medical qualification by inclusion in the 2nd schedule, such qualification cannot be discarded from eligibility for any particular post. There is no logic in such a contention, because the University or the Government has to prescribe various qualifications for different posts. For example, if for any particular post a PG degree is the prescribed as the minimum qualification, it cannot be contended that a bachelor degree also should be made as acceptable because that particular degree is also included in the 2nd schedule and recognized by the W.P.(C).No.21632 OF 2006, W.P.(C).No.24538 OF 2006, W.P.(C).No. 9573 OF 2009, 22 W.P.(C).No.7752 OF 2011 AND W.P.(C).No.146 OF 2012 Central Council as a medical qualification. Such a recognition of the medical qualification may entitle the holder to practice in the said branch of medicine. But it cannot be insisted that all such qualifications will make them eligible to hold any post in the teaching profession. Hence the prescription of qualifications for different posts in the teaching profession is a subject perfectly coming within the domain of the universities. Accepting any particular type of qualification or excluding any particular type of qualification for holding any posts, is a matter which is coming within the wisdom of the University while formulating the relevant Regulations.
15. Learned Council for th petitioners have placed reliance on a decision of the Hon'ble Supreme Court in Dr.B.L. Asawa v State of Rajasthan and Others [1982 (2) SCC 55]. Question considered in that case is as to whether the Public Service Commission of Rajasthan State was right in excluding the appellant from W.P.(C).No.21632 OF 2006, W.P.(C).No.24538 OF 2006, W.P.(C).No. 9573 OF 2009, 23 W.P.(C).No.7752 OF 2011 AND W.P.(C).No.146 OF 2012 considering for appointment to the post of Lecturer in Forensic Medicine in the Government Medical college, for the reason that he did not possess the academic qualification prescribed under the relevant University ordinance. The Apex Court observed that, PG Degree granted by a university duly established through a statute and which is recognized by the Indian Medical Council by inclusion in the Schedule of the Medical Council Act has such a fact to be regarded, accepted, treated as valid through out the country. In the absence of any express provisions to the contrary, such a degree is to be specifically recognised by other universities in any state in India and it can be accepted as a valid qualification for the purpose of appointment to any post in such state, is the finding. But the basic aspect to be noticed is that, in the said case the qualification prescribed for the post in question under the university ordinance is a basic university degree or an equivalent qualification entered in W.P.(C).No.21632 OF 2006, W.P.(C).No.24538 OF 2006, W.P.(C).No. 9573 OF 2009, 24 W.P.(C).No.7752 OF 2011 AND W.P.(C).No.146 OF 2012 the schedule of the Indian Medical Council Act. When the prescribed qualification accepted equivalent qualification entered in the schedule of the Medical Council Act, the PSC was not justified in rejecting the qualification stating that the degree is not recognised by any of the Universities in Rajasthan. But in the case at hand, the Regulation formulated by the University stipulates that the PG Degree in Homoeopathy should be from any of the Universities in Kerala or from any other Universities recognised by the Universities in Kerala as equivalent thereto. On the other hand, the qualification prescribed is not any equivalent qualification recognised by the Central Council or included in the 2nd Schedule. Moreover, it is pertinent to note that the challenge is only with respect to the rider included in the 'Note' which will have the effect of accepting the PG Degree courses from external universities, only if it is acquired through 3 years class attendance. The University is well within its W.P.(C).No.21632 OF 2006, W.P.(C).No.24538 OF 2006, W.P.(C).No. 9573 OF 2009, 25 W.P.(C).No.7752 OF 2011 AND W.P.(C).No.146 OF 2012 competence to prescribe such qualification. It only insists that the equivalent PG degree recognized by the Universities in Kerala should be a degree obtained through attending 3 years class, which is the minimum requirement for the PG courses in Kerala.
16. Learned Counsel for petitioners have placed reliance on another decision of the hon'ble apex Court in Medical Council of India v State of Karnatka and Others [1998 (6) SCC 131]. While referring to the scope of Entry 66 of list 1 a reference was made to its earlier decision in Gujarat University v Krishna Ranganath Mudholkar [AIR 1963 SC 703]. There the court was considering about the repugnance between Entry II of List II and Entry 66 of list 1. The apex court observed that the controversy raised is not surviving after the 42nd amendment when Entry 11 of List II has been deleted. However the observation was to the effect that, though powers of Union and the State are in the exclusive W.P.(C).No.21632 OF 2006, W.P.(C).No.24538 OF 2006, W.P.(C).No. 9573 OF 2009, 26 W.P.(C).No.7752 OF 2011 AND W.P.(C).No.146 OF 2012 lists, a degree of overlapping is inevitable. It is not possible to lay down any general test which would afford a solution for every question which might arise on this head. On the one hand it is certainly within the province of State Legislature to prescribe syllabi and courses of the study and of course to indicate the minimum of instruction. On the other hand it is also within the power of Union to legislate in respect of the media of instruction so as to ensure co-ordination and determination of the standard. The question of repugnance and paramouncy have to be resolved on the application of the 'doctrine of pith and substance' of the impugned enactment. The apex court observed that, the Indian Medical Council Act is relatable to Entry 66 of List I and and it will prevail over any state enactment to the extent it is repugnant to the provisions of the Act, even though the State Act may be reliable to Entry 25 of List III. Regulations framed under Section 33 of the Medical Council Act will have W.P.(C).No.21632 OF 2006, W.P.(C).No.24538 OF 2006, W.P.(C).No. 9573 OF 2009, 27 W.P.(C).No.7752 OF 2011 AND W.P.(C).No.146 OF 2012 mandatory force since those Regulations are mentioned under Section 33. But on the facts, the dictum may not be applicable in the case at the hand. The Regulations framed by the university cannot be pointed out as repugnant to the Regulations framed under Section 33 of the Homoeopathy Central Council Act.
17. Learned Counsel appearing in W.P.(C) No.21632/2006 had also placed for reference a judgment of the High Court of Andra Pradesh in Writ Petition No.6072/2007 dated 28.11.2008. There the question considered is whether the State Government can impose a condition of regular study not less than 3 years duration, before acquiring PG degree qualification, for the purpose of promotion to the post of Professor when regulations framed under the Central Act do not differentiate between regular candidate and external candidate. Referring to the Homoeopathy (PG degree Course) MD(Hom) Amendment Regulations 2001 it was W.P.(C).No.21632 OF 2006, W.P.(C).No.24538 OF 2006, W.P.(C).No. 9573 OF 2009, 28 W.P.(C).No.7752 OF 2011 AND W.P.(C).No.146 OF 2012 observed that the regulation do not differentiate between acquiring PG qualification by regular study or external study and when there is no such distinction the Rules framed by the State Government stipulating that the degree has to be acquired after under going regular study of not less than 3 years duration, are inconsistent and contrary to the Amended Regulation 2001. But as observed above, such a repugnance or contradiction cannot be pointed out with respect to the impugned 'Note' in the University Regulation or in the Government Special Rules.
18. Learned Counsel appearing for additional respondents 5 & 6 in W.P.(C) 21632/2006 contended that, prescription of any particular qualification for appointment of teachers is purely within the domain of the University or the Government as the case may be, who is regulating functioning of the medical institutions. It is pointed out that, what is contemplated under Section W.P.(C).No.21632 OF 2006, W.P.(C).No.24538 OF 2006, W.P.(C).No. 9573 OF 2009, 29 W.P.(C).No.7752 OF 2011 AND W.P.(C).No.146 OF 2012 20 of the Central Act is only a prescription of the minimum standard of education required for granting recognition for medical courses. The power to make Regulations contained under Section 33 is also confined to providing details of courses, like period of study and practical training of the subjects of examination and the standard of proficiency etc. It also includes the standard of staff, equipments, accommodation, training and other facilities for education. But it does not prohibits any University or medical institution from prescribing any higher qualification. Prescription of any such higher qualification will not in any manner be considered as contrary or repugnant to the Central Statute or the Regulations made thereunder, is the contention.
19. Sri. P. Raveendran, learned Senior Counsel appearing on behalf of additional 6th respondent had placed a decision of the hon'ble Supreme Court in Technical Employees' Association of Railways and W.P.(C).No.21632 OF 2006, W.P.(C).No.24538 OF 2006, W.P.(C).No. 9573 OF 2009, 30 W.P.(C).No.7752 OF 2011 AND W.P.(C).No.146 OF 2012 Another and v Ministry of Railways and Others [2009 SCC 413.] It is held therein that the question whether prescribing higher qualifications for the purpose of promotion whether permissible under the law, no more remains as res integra. Referring to various decisions of the apex Court itself it is held that, it would be open for the employer to prescribe qualifications both for direct requirement as well as for promotion, for maintaining efficiency of service. The higher qualification is required for discharge of duties in the higher positions and therefore prescribing such qualification cannot be held to be arbitrary or irrational.
20. As pointed out in the foregoing paragraphs, the university or the Government is in its wisdom in prescribing qualifications for higher post in the medical education and in stipulating that the PG Degree should be one obtained under a regular course with 3 years attendance, such prescription cannot be found as contrary W.P.(C).No.21632 OF 2006, W.P.(C).No.24538 OF 2006, W.P.(C).No. 9573 OF 2009, 31 W.P.(C).No.7752 OF 2011 AND W.P.(C).No.146 OF 2012 or repugnant to provisions contained in the Central Act, or any Regulations made under the said Act. Further such prescription will not in any manner be treated as unrecognizing a medical qualification recognized by the Central Council under Section 13 of the Central Act and the 2nd Schedule thereunder. Hence the challenge raised against the 'Note' included below the table in Clause (3) of the Ext.P19 Regulations fails. The relief to the above extent for in this writ petition cannot be allowed.
21. However, as pointed out above, Ext.P19 Regulation as well as the Special Rules framed by the Government with respect to the Homoeopathic Medical College Services clearly provides a saving clause to the extent that those Regulations/Rules shall not in any manner adversely affect any person who is a member of the service as on the date of coming into force of the Rules/Regulations in respect of matters like continuance in the post and promotion to higher categories. W.P.(C).No.21632 OF 2006, W.P.(C).No.24538 OF 2006, W.P.(C).No. 9573 OF 2009, 32 W.P.(C).No.7752 OF 2011 AND W.P.(C).No.146 OF 2012 Admittedly the petitioners in the above said 4 cases were promoted to the higher categories either by accepting their PG qualification or the graduate qualification as the case may be. Granting of revised scale of pay under AICTE scheme was denied on the basis that the petitioners have acquired MD(Hom) by not attending 3 years class, which is the minimum requirement for PG course in Kerala. Note 1(b) provides that PG holders alone will be eligible for AICTE scale of pay. There is no dispute that the petitioners are holding PG Degree. Whether they can be denied the AICTE approved scale of pay on the basis that they may not be eligible for promotion under the revised Regulations is the question. Considering the saving clause, they remains already promoted and fact remains that they have acquired PG degree. Whether the impugned rider imposed with respect to promotions to be granted after introduction of the Rules/Regulations can be adopted as a reason for W.P.(C).No.21632 OF 2006, W.P.(C).No.24538 OF 2006, W.P.(C).No. 9573 OF 2009, 33 W.P.(C).No.7752 OF 2011 AND W.P.(C).No.146 OF 2012 denying the pay scale under the AICTE scheme, is a matter which according to this court requires reconsideration. In this regard it is appropriate that the Government shall consider the aspect having due regard to the Regulations/Special Rules and having regard to the observations contained herein above. It should also take into account of Ext.P14 order through which the Government had approved the benefit to Dr.P.Muraleedharan.
22. Therefore the first 4 writ petitions are hereby disposed of by directing the State Government to re- consider the denial of revised scale of pay under the AICTE Scheme to the petitioners, which is informed under the relevant letters issued. The matter shall be re- considered by the 1st respondent after affording opportunity of personal hearing to the petitioners and also taking note of the views expressed by the Universities concerned. A fresh decision in this regard W.P.(C).No.21632 OF 2006, W.P.(C).No.24538 OF 2006, W.P.(C).No. 9573 OF 2009, 34 W.P.(C).No.7752 OF 2011 AND W.P.(C).No.146 OF 2012 shall be taken at the earliest possible, at any rate within a period of 4 months from the date of receipt of a copy of this judgment.
23. In view of the judgment rendered in the first 4 writ petitions, the reliefs sought for in W.P.(C). No.146/2012 need no further consideration. Since it is already found that the differentiation introduced in the Regulation between regular course and external course is valid, the grievance expressed in the said writ petition remains satisfied. Hence the said writ petition is disposed of accordingly.
Sd/-
C.K.ABDUL REHIM, JUDGE.
SKV