Kerala High Court
State Of Kerala vs A.R.Balagopalan on 30 October, 2015
Author: P.R.Ramachandra Menon
Bench: P.R.Ramachandra Menon
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
&
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
THURSDAY, THE 21ST DAY OF JUNE 2018 / 31ST JYAISHTA, 1940
WA.No. 1823 of 2017
AGAINST THE JUDGMENT IN W.P.(C)NO. 606/2013, DATED 30-10-2015
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APPELLANT(S)/RESPONDENTS 1 AND 2 IN W.P(C) :
1 STATE OF KERALA,
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
HEALTH AND FAMILY WELFARE DEPARTMENT,
THIRUVANANTHAPURAM 695 001.
2 THE PRINCIPAL,
SANCTIONING AUTHORITY/CONTROLLING OFFICER,
GOVERNMENT HOMEOPATHIC MEDICAL COLLEGE,
THIRUVANANTHAPURAM 695 009.
BY GOVERNMENT PLEADER SRI.P.N.SANTHOSH
RESPONDENT(S)/PETITIONERS & RESPONDENTS 1 & 2 IN W.P.(C):
1. A.R.BALAGOPALAN,
AGED 46 YEARS, S/O. A.H.RANGANATHA KAMMATH,
WORKING AS L.D CLERK, DR. PADIAR MEMORIAL HOMOEOPATHIC
MEDICAL COLLEGE, CHOTTANIKKARA, PIN- 682 312.
2. L. NAGENDRA SHENOI,
AGED 44 YEARS, S/O. LAKSHMANA SHENOY,
WORKING AS L.D CLERK, DR.PADIAR MEMORIAL HOMOEOPATHIC
MEDICAL COLLEGE,CHOTTANIKKARA, PIN- 682 312.
3. R. RAJESH,
AGED 40 YEARS, S/O. M.A RAMACHANDRA PRABHU,
WORKING AS L.D CLERK, DR. PADIAR MEMORIAL HOMOEOPATHIC MEDICAL
COLLEGE, CHOTTANIKKARA, PIN- 682 312.
4. THE PRINCIPAL,
DR. PADIAR MEMORIAL HOMOEOPATHIC MEDICAL COLLEGE,
CHOTTANIKKARA, PIN- 682 312.
..2/-
..2..
WA.No. 1823 of 2017
5. DR. PADIAR MEMORIAL HOMOEOPATHIC MEDICAL COLLEGE HOSPITAL
CHOTTANIKKARA, REPRESENTED BY ITS SECRETARY,
DR. PADIAR MEMORIAL HOMOEOPATHIC MEDICAL COLLEGE
HOSPITAL, CHOTTANIKKARA, PIN- 682 312.
R1 TO R3 BY ADV. SRI.K.R.RAJKUMAR
R4 & R5 BY ADV. SMT.R.RANJINI
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION
ON 21-06-2018, ALONG WITH W.A.NO. 1973 OF 2017 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Msd.
28.06.2018
[C.R.]
P.R. RAMACHANDRA MENON
&
DEVAN RAMACHANDRAN, JJ.
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W. A. Nos. 1823, 1973, 2020, 2159,
2168, 2034 of 2017 and
W.A. No. 125 of 2018
~~~~~~~~~~~~~~~~~~~~~
Dated, this the 21th day of June, 2018
JUDGMENT
Devan Ramachandran, J.
The axial issue in this appeal turns on the factual question whether the Dr. Padiyar Memorial Homeopathic Medical College Hospital, Chottanikkara [hereinafter referred to as 'Hospital' for short] has been brought under the regime of Direct Payment System ['DPS' for short] by the Government of Kerala, and this garners magnitude because it is conceded that the Dr. Padiyar Memorial Homeopathic Medical College, Chottanikkara [hereinafter referred to as 'College' for short] has been so brought under the DPS regime by the Government of Kerala, through its order No. G.O. (MS) 100/2000/H&FWD dated 25.04.2000.
2. These appeals have been preferred by the State of Kerala and its functionaries of the Medical Education Department, aggrieved by the judgment of a learned Judge of this Court, in W.P.(C) No.606 W.A. No. 1823 of 2017 and connected cases :2: of 2003 and connected matters, wherein it has been declared by the learned Judge that the Hospital is also to be inferentially deemed to have been brought under the DPS by the Government of Kerala on account of two subsequent orders issued by it, as per which Government has approved the service of one other employee of the Hospital, stating therein that the Hospital is also under the DPS and thus under its administrative control. We notice from the judgment impugned before us, that after holding as above, the learned Judge has declared that the writ petitioners in these cases are entitled to salary and other benefits from the date on which the Hospital should be deemed to have been brought under the DPS though the specific date has not been concluded therein.
3. The main thrust of the Government's contentions in these appeals is that the finding of the learned single Judge that the Hospital should be seen to have been brought under the DPS is completely conjectural and in clear violation of the declaration contained in the judgment of the Honourable Supreme Court delivered in C.A. No. 1152-1153 of 2009 filed by the Government, against the judgment of this Court in certain earlier Writ Petitions and its appeals, wherein according to him, this very issue was impelled by the writ petitioners W.A. No. 1823 of 2017 and connected cases :3: herein and others, but repelled by the Honourable Supreme Court. The learned Government Pleader, referring to the said judgment, a copy of which has been appended as Ext. P4 in W.P.(C) No.606 of 2013 from which W.A. No. 1823 of 2017 has arisen, asserts that the Honourable Supreme Court has, as early as on 23.02.2009, being the date of the judgment declared that the Hospital has not been brought under the DPS and that none of its employees, including the writ petitioners herein, are entitled to seek that the Hospital also be deemed to be under the DPS merely because the College has been brought under such regime, since these are matters falling in the realm of the policy decision making powers of the Government, into which Courts, while acting either under Articles 32 or 226 of the Constitution of India, cannot delve into or deal with affirmatively one way or the other.
4. We have heard Sri. P. N. Santhosh, the learned Government Pleader appearing for the appellants; Sri. K. R. Rajkumar; Sri. R. Harikrishnan; Sri. George Sebastian; Sri. Elvin Peter; Sri. P. Harikrishnan, learned counsel appearing for the various party respondents and Smt. R. Ranjini, the learned counsel appearing for the respondent College.
W.A. No. 1823 of 2017 and connected cases :4:
5. Eventhough, these writ appeals contain large amount of pleadings and materials, we are of the view that it would not be necessary to consider them in detail on account of a particular intervening event, which is that the Government, as we are told by the various learned counsel appearing for the writ petitioners, has pending these appeals, by an order, bearing No. G.O.(Rt.) No. 195/2016/AYUSH dated 11.05.2016, complied with the judgment of the learned single Judge, granting the benefit of DPS to the writ petitioners, albeit prospectively, from the date of the said order, namely w.e.f. 11.05.2016. According to them, this order substantially complies with the directions contained in the impugned judgment of the learned single Judge, but that the restriction under it that the benefits of the DPS be given only prospectively from its date is contrary to the judgment, since the learned single Judge has declared that all such benefits are to be made available to the writ petitioners from the date on which the Hospital should be deemed to be under the cover of the DPS. As per them, therefore, these appeals deserve to be dismissed, consequently directing the appellants to afford the benefits under the DPS to the writ petitioners from an earlier date, as directed in the judgment impugned.
W.A. No. 1823 of 2017 and connected cases :5:
6. The learned Government Pleader concedes that the Government has issued such an order but contends that it has been so issued only provisionally and subject to the result of these appeals.
7. We have examined the afore mentioned order dated 11.05.2016, though not produced on record but the copy of which has been handed over to us across the Bar by the learned counsel appearing for the various writ petitioners. From an ex facie reading of the same, which we have by a separate order directed the Registry of this Court to be placed in the Judges Papers of these appeals, we cannot accede to the submission of the learned Government pleader that it has been issued subject to the result of these appeals. The order does not say so at all but on the contrary, states unequivocally that the judgment impugned herein has been thus complied with. In such scenario, it is not necessary on our part to assess the merit or legality of this order and we take it that the Government has now chosen to comply with the impugned judgment, though refusing benefits under the DPS to the writ petitioners prior to that date.
8. That being said, our further consideration in these appeals, will, therefore, be confined to whether the writ petitioners are entitled to benefits prior to the date of the aforementioned order now issued W.A. No. 1823 of 2017 and connected cases :6: by the Government or from a date anterior to it.
9. We will now proceed with this limited evaluation.
10. As is perspicuous from the impugned judgment, the observations and conclusions of the learned single Judge appear to have been made and arrived on the basis of an impression, created on account of two other orders, copies of which have been placed on record in W.P.(C) No. 606 of 2013, from which W.A. No. 1823 of 2017 arises, as Exts. P20 and P21, whereunder another person by name Sri. Vishnu Prasad G. had been offered approval of his appointment as Watchman in the Hospital by the Government. The axiomatic contention of the writ petitioners before the learned single Judge was that these two Government Orders would establish that the Government has treated both the Hospital and the College as one single unit and has thus treated both of them to be under the DPS regime. It is indubitably being guided by this particular contention, that the learned single Judge has issued the directions in the impugned judgment in the manner it has been done. We are, therefore, now enjoined to consider if this impression of the learned single Judge is justified, because the answer to this will decide if the writ petitioners are entitled to the benefit of the DPS regime from a W.A. No. 1823 of 2017 and connected cases :7: date anterior to the one now granted by the Government, in its latest order dated 11.05.2016, referred above.
11. We are aware that the judgment of the Honourable Supreme Court, namely Ext. P4 produced in W.P.(C) No. 606 of 2003 from which W.A. No. 1823 of 2017 arises, was against the judgment of this Court in an earlier round of litigation, by the writ petitioners herein and certain others, wherein the contentions impelled was that since the Hospital and the College are interdependent and thus being one and the same, the Government order dated 25.04.2000, which brought the College under the DPS fold, will have to be deemed as having brought the Hospital also under its ambit. These Writ Petitions were allowed by a learned Judge of this Court and confirmed in appeals filed by the Government. However, the Honourable Supreme Court set aside the judgments, finding that the Government order dated 25.04.2002, brought only the College under the DPS regime and not the Hospital. The Hon'ble Supreme Court thus allowed the appeal declaring that it is for the Government, invoking its right to make policy decisions, to decide whether the Hospital should be also brought under the DPS and that Courts cannot grant declaratory reliefs to the Writ Petitioners intruding into such powers of W.A. No. 1823 of 2017 and connected cases :8: the Government.
12. It is thus limpid that as on the date of Ext.P4 judgment of the Honourable Supreme Court, namely 23.02.2009, the inviolable and inescapable position is that the Hospital had not been brought under the DPS.
13. However, the big question is whether the Government had a change in policy or whether it had adopted a new policy subsequently, bringing the Hospital also under the DPS. The learned single Judge has concluded that this is so because of Exts. P20 and P21 orders issued by the Government, subsequent to the judgment of the Hon'ble Supreme Court. We will have to examine if this conclusion in the judgment is credible, for which we are certainly to examine these two Government Orders.
14. When one reads Exts. P20 and P21, filed in the writ petition No. 606 of 2013, from which W.A. No. 1823 of 2017 arises, it is luculent that the Government has virtually made a volte-face, with respect to their earlier position that the Hospital has not been brought under DPS, by recording therein that the appointment of certain Sri. Vishnu Prasad mentioned in it is being approved because the Hospital is also under the DPS. To add to this, in Ext. P21 Government Order, W.A. No. 1823 of 2017 and connected cases :9: they further say that in order to accommodate the claim of the legal heirs of another deceased employee, by name Sri. Thrideep, for employment, as and when such a claim is made, the Management shall keep apart one post either from the College or the Hospital to accommodate it. These statements in Exts. P20 and P21, we are certain, will inferentially guide any one who reads it to believe that the Government has had a change in policy subsequent to the judgment of the Honourable Supreme Court and that they now treat both the Hospital and the College as an integrant of each other, thus both of them coming under the DPS. This justifiable belief is fortified by the fact that the Government has now issued the aforementioned Government Order dated 11.05.2016, implementing the DPS even for the writ petitioners, albeit prospectively.
15. It, therefore, certainly persuades us to conclude that both the Hospital and the College have, at least from the date of the Government Order dated 11.05.2016, been considered by the Government as an integrant of each other, thus bringing the Hospital also under the DPS.
16. The sole surviving question is whether, as has been contended by the writ petitioners herein, the Hospital should be W.A. No. 1823 of 2017 and connected cases : 10 : deemed to be under the DPS from 25.02.2000, being the date of the first Government Order bringing the College under DPS or at least from the dates on which Exts. P20 and P21 orders were issued by the Government with respect to the afore mentioned employee by name Vishnu Prasad.
17. As regards the first limb of the above contention is concerned, since we are bound by the judgment of the Hon'ble Supreme Court, it is not possible for us to declare that the Hospital should be deemed to be under the DPS with effect from 25.04.2000 and we are compelled, therefore, to repel this assertion of the writ petitioners without further delving on it. When we say this, we are certainly cognizant that the contention of the writ petitioners on this that this judgment of the Honourable Supreme Court was delivered on the basis of wrong submissions or wrong inputs placed before it by the State of Kerala and that the various orders subsequent to the one dated 25.04.2000 would show the truth to be otherwise. We are afraid we cannot accede to this submission of the writ petitioners, even if it is true, because the judgment of the Honourable Supreme Court is completely binding on us. We are in no way competent or entitled to deviate from the observations and holdings therein even for W.A. No. 1823 of 2017 and connected cases : 11 : the reason that the judgment was delivered on wrong facts being presented before the Hon'ble Supreme Court. It is needless to say that if the writ petitioners have such a case, it is upto them to approach the Honourable Supreme Court appropriately and have the judgment modified or altered in terms of law. As long as Ext. P4 judgment holds the field, we are bound by it, and therefore, any conclusion contrary to the factual findings of the Honourable Supreme Court in Ext. P4 is obviously untenable.
18. Pertinently, the learned single Judge has not concluded or ordered that the DPS benefits are entitled to the writ petitioner prior to the date of the judgment of the Hon'ble Supreme Court and therefore, the predication of the appellants that the impugned judgment is contrary to it is without basis and to be jettisoned, being without any merit.
19. Thus finally, it brings us to the nature of the declaration and direction in the impugned judgment. The learned Judge, as is evident from the judgment, has only inferentially held that Exts. P20 and P21 orders, in W.A. No. 1823 of 2017, would show that the Government have either changed its earlier policy or adopted a new one from the date of the said orders. However, pertinently no where in the W.A. No. 1823 of 2017 and connected cases : 12 : judgment has the learned single Judge recorded the specific date from which the DPS ought to be deemed to have been implemented in the Hospital, but has issued directions to offer all benefits to the writ petitioners from the date on which the Government has implemented the DPS in the hospital.
20. This puts us in a rather piquant situation since we are now to decide the date from which the DPS ought to be deemed to be implemented in the Hospital. We, however, are of the view that we cannot do so for reasons we will now state.
21. Since the Government has now issued an order, dated 11.05.2016, bringing the writ petitioners under the umbra of the DPS, though prospectively, we can safely conclude that the Government has altered its policy w.e.f the date of the order, namely from 11.05.2016. When we say so, the question as to whether the petitioners would be entitled to any benefit under the DPS regime, for the period prior to 11.05.2016 and from when, is not one that can be decided and answered by us conclusively in this judgment. This is because these are again matters that will be best left to the Government to consider at the first instance, taking into account the fact that they have already, through Exts. P20 and P21 orders, W.A. No. 1823 of 2017 and connected cases : 13 : indicated that the policy has changed even in the year 2008.
22. Since we notice that the writ petitioners have been serving in the hospital as early as from the year 1998-1999 and that they were paid salary, at least until the date of the judgment of the Hon'ble Supreme Court, on the scales applicable to those under the DPS, we leave it open to the petitioners to approach the competent Authority of the Government with an apposite representation detailing all their claims and to seek such reliefs, as they are desirous, within a period of 15 days from the date of receipt of a copy of this judgment. If such a representation is received by the competent Authority from the writ petitioners within the time granted herein, it will be obligated to consider the same, adverting specifically to the contentions of the writ petitioners hinged on Exts. P20 and P21 Government Orders, produced in W.A. No. 1823 of 2017, as expeditiously as possible but not later than four months from the date of receipt of a copy of this judgment.
23. We clarify that we are not in any manner concluding regarding the entitlement of the writ petitioners' to the DPS benefit prior to 11.05.2016, being the date of which the Government has issued the present order, bringing them under the ambit of DPS and W.A. No. 1823 of 2017 and connected cases : 14 : we leave all such issues to be decided by the Government, after hearing the petitioners appropriately.
With the above observations and the above liberty reserved to the writ petitioners/respondents, these appeals stand disposed of.
sd/-
P. R. RAMACHANDRA MENON, JUDGE sd/-
DEVAN RAMACHANDRAN, JUDGE kmd /True copy/ P.A. To Judge