Antony Dominic, J. These appeals are filed against the common judgment of the learned single Judge dismissing WP(C) Nos.20434, 20502 and 21834/12. Since the issues raised in these appeals are common, these cases were heard and are disposed of by this common judgment treating WA No.209/14 as the leading case.
2. The writ petitions were filed by Tutors in the Medical College impugning the legality of GO(MS) No.270/2012/H&FWD dated 14/8/12, which is marked as Ext.P21 in WP(C) No.20502/12 against the judgment of which WA No.209/14 is filed. By the judgment under appeal, the writ petitions were dismissed taking the view that Ext.P21 reflected the policy of the Government indicating the manner in which the seniority of the teaching staff of the Medical College should be reckoned. Learned single Judge has also held that if at all there is a change in conditions of service as a result of Ext.P21, the writ petitioners were bound by such change.
3. Before we deal with the contentions raised at the bar, we shall refer to the relevant facts which led to the filing of the writ petitions.
4. By Ext.R4(a) order dated 14/9/98, the appellant was appointed on probation as Tutor in Dr.Padiyar Memorial Homoeopathic Medical College (hereinafter referred to as the Medical College for short). On completion of the probationary period of one year, he was absorbed into regular service by Ext.R4(a)(1) order dated 29/9/99. Exts.R4(b) and (c) are the orders dated 12/6/95 and 1/6/97 respectively whereby respondents 4 and 5 were also appointed in the Medical College. It is necessary to mention in this context that these appointment orders do not mention any department to which the aforesaid persons were appointed in the Medical College.
5. Subsequent to their entry into service, Annexure A dated 31/7/98 was issued by the Central Council of Homeopathy requiring the Principals of Homoeo Medical Colleges and the other authorities mentioned therein, to ensure that the teaching staff are appointed in the cadres of Professor, Assistant Professor/ Reader, Lecturer and Demonstrator/Tutor subject wise and that such teaching staff must possess the requisite recognised medical qualifications and teaching and administrative experience as laid down in the Homeopathy (Minimum Standards of Education) Regulations, 1983. Ext.R3(6) series and Ext.R6(m) series are orders of appointment issued by the Medical College subsequent to Annexure A which show that appointments were made subsequent to 31/7/1998, when Annexure A was issued, and the departments to which the appointments were made are specified.
6. While matters stood thus, w.e.f. 1/1/2000, direct payment system was introduced in the Medical College. At that stage, since staff strength was not fixed, two Tutors in the Medical College filed OP No.19111/2000 before this Court. That OP was disposed of by Ext.R3(3) judgment dated 31st of July, 2000, where this Court directed the Controlling Officer and Principal, Government Homoeopathic Medical College, Thiruvananthapuram to fix staff strength in the Medical College. It was also directed that the 2nd respondent shall enquire about the existence of a seniority list and to get a copy of the same from the Medical College and the staff strength shall be fixed taking into account the seniority list as well. WA No.2255/2000 was filed by a third party challenging the judgment of the learned single Judge. That Writ Appeal was disposed of by Ext.R3(4) judgment dated 19th of July, 2001. In that judgment, the Division Bench found that there was no seniority list as such, but it was held that considering the facts and circumstances of the case, it was only appropriate to let parties be allowed to raise their grievances before the Controlling Officer and Principal and the Controlling Officer and Principal was directed to pass appropriate orders in the matter. It was further directed that the the Principal of the Medical College may pass appropriate orders with regard to the staff fixation in the College.
7. In pursuance of the directions contained in Ext.R3(4) judgment of the Division Bench, a proposal was made by the Controlling Officer and on the basis of the proposal thus made, the Government of Kerala passed Ext.R4(d) order dated 25/4/2002 approving the staff pattern of the College consisting of 40 senior most and qualified teaching staff out of 48 teaching staff then working in the College. The Controlling Officer also issued Ext.R3(5) dated 20/7/2002, fixing the seniority of the teaching staff, the relevant portion of which reads thus;
“A hearing was held by the under signed on 16/8/2001. During the hearing all the concerned parties have given chance for presenting their grievances. After having considered all the grievances raised by the affected parties, it was decided to fix the staff strength and the seniority list of teachers of Dr.Padiyar Memorial Homoeopathic Medical College, Ernakulam based on the department- wise seniority as previously done in the A.N.S.S.Homoeopathic Medical College, Kottayam and the undersigned ordered the seniority list of teachers and non-teaching staff of Dr.Padiyar Memorial Homoeopathic Medical College published as Annexure-I and Annexure- II to this order.”
8. Annexure to Ext.R3(5) shows that the seniority list finalised by the Controlling Officer is a department wise seniority list of 40 teachers, who were included in the staff strength fixed by the Government in Ext.R4(d). Here, in this context, it should be mentioned that Ext.R3(5) issued by the Controlling Officer was in pursuance of the directions of this Court in the judgment in WA No.2255/2000 and as directed therein, he also heard all the members of the teaching staff. It is also necessary to bear in mind that none of the members of the teaching staff challenged Ext.R3 (5) and therefore, Ext.R3(5) seniority list has become final and binding on all parties thereto.
9. In 2002, OP No.12711/02 and connected cases were filed by 8 members of the teaching staff who were excluded from Ext.R4(d), staff strength fixed by the Government. That original petition was disposed of by Ext.P1 judgment dated 15/9/2004 where Ext.R4(d) was quashed to the extent it excluded the petitioners in the original petitions from the list of qualified teaching staff as on 1/1/2000, while including those teachers who were juniors to them. The operative portion of this judgment contained in para 14 reads thus;
“14. In the result, I quash G.O.(MS) No.99/G2/H&FWD dated 25.4.2002 to the extent it has excluded the petitioners from the list of qualified teaching staff as on 1.1.2000 while including those teachers who are juniors to the petitioners. There shall be a direction to the 1st respondent to include the petitioners in the appropriate place in Annexure I on the basis of their seniority. It is declared that the petitioners shall be entitled for salary on the basis of such inclusion, in the pay scale made applicable under the direct payment system. The original petitions are allowed as above.”
10. The judgment of the learned single Judge was challenged by the State of Kerala and the Principal and the Controlling Officer in WA No.189/05. That appeal was heard along with connected appeals and was dismissed by Ext.P2 common judgment rendered on 3rd of June, 2005. Civil Appeal Nos.1147 to 1151/2009 filed before the Supreme Court were also dismissed by Ext.P3 judgment dated 23/2/2009.
11. During the pendency of the Civil Appeals, Government of Kerala issued Ext.P4 order dated 18/11/2006. By this order, in compliance with the Division Bench judgment, the Government included the petitioners in OP No.12711/02 and connected cases, who had filed the original petitions, in the appropriate place in the Annexure to Ext.R4(d) mentioned above. It was also clarified that this was on the basis of seniority, so that they also would come under Direct Payment System, treating them as supernumeraries and subject to the result of the SLP which was then pending. Among the 8 teachers whose inclusion was ordered by the Government, the appellant in WA No.209/14 is the 7th one. Annexure 1 to Ext.P4 is a list of teaching staff in the college prepared on the basis of seniority and this document shows that the list was prepared department wise.
12. Subsequent to the dismissal of the Civil Appeals, Government issued Ext.P5 oder regularising the services of the 8 members of the teaching staff mentioned above w.e.f. 1/1/2000 as per their positions indicated in the annexure to Ext.P4. As a result of this exercise, 8 members of the teaching staff also became members of the regular cadre w.e.f. 1/1/2000 and they also found their place in the department wise seniority fixed by the Controlling Officer as per Ext.R3(5).
13. Subsequently, Government issued Ext.P6 order dated 26/2/11 stating that the possibility of achieving the staff strength as per the Central Council of Homoeopathy norms was examined and that the Government were pleased to create 20 posts as detailed in the Annexure to the order in lieu of abolishment of the 23 posts detailed therein. It was also ordered that the management will issue orders promoting the eligible hands against the newly created posts.
14. At that stage, WP(C) Nos.11356 and 18079/11 were filed by three members of the teaching staff, among whom, according to the management, two were already promoted as Lecturers and one was continuing as Tutor. In these writ petitions, they challenged Ext.P6 and obtained an interim order of stay of promotion based on the said order. Records show that their prayer was that the College should be directed not to effect promotions based on Ext.P6 before finalising the seniority list and before allotting teachers to different departments after obtaining their option. In these writ petitions, this Court passed a common order on 18/8/11, a copy of which is Ext.P7. In this order, a learned single Judge directed the Government to decide on Ext.R1 (1), copy of a report dated 23/3/11, in the light of the decision already taken by them in respect of Athurasramam NSS Homoeopathic Medical College, Kurichi, where the Central Council of Homoeopathy Regulations were implemented. Para 6 of Ext.P7 order, being relevant, is extracted below for reference;
“6. In that view of the matter there will be a direction to the Government to take a decision on Exhibit.R1(1) especially in the light of the decision already taken in respect of Athurasramam NSS Homoeopathic Medical College, Kurichi, wherein the Central Council of Homoeopathy Regulations have been implemented. Appropriate decision will be taken within a period of one month. The 1st respondent in W.P.(C) No.11356/11 will forward a copy of this interim order along with a further copy of Exhibit R1(1) to the Government for compliance. While taking a decision, the Government will abide by Exhibit P5, namely Central Council of Homoeopathy Regulations (Minimum requirements for a College).”
15. Referring to the order passed by this Court, Government issued Ext.P8 order dated 27/9/11 stating that the Government have decided to review the staff strength of the Medical College and to sanction posts, if necessary, in conformity with the Central Council of Homoeopathy Regulations and to approve the promotions in accordance with it, as was done in the case of ANSS Homoeopathic Medical College, Kurichi. It was ordered that the management of the Medical College will submit proposal through the Principal and Controlling Officer, Government Homeopathic Medical College, Thiruvananthapuram for further action as above. This was brought to the notice of this Court and thereupon Ext.P9 common order dated 19th October 2011 was passed. This order shows that, according to the management of the Medical College, on receipt of the communication of the Government, they had already submitted a proposal through the Controlling Officer. Taking note of the submissions so made, in Ext.P9 order, this Court directed that the Government will have to take a decision in terms of the proposal made by the Principal of the Medical College.
16. Ext.P10 is a copy of the proposal that was made by the Principal of the Medical College. A perusal of Ext.P10 shows that the staff strength indicted therein is department wise. Ext.P11 is the recommendation made by the Principal and Controlling Officer on Ext.P10. In the light of the directions of this Court as contained in Exts.P7 and P9 interim orders, Exts.P10 and P11 were considered and the Government passed Ext.P21 order dated 14/8/12. By this order, it was ordered to upgrade/create 8 posts of Professor and 5 posts of Reader by abolishing the existing Tutor posts, so that there will be 13 Professors, 15 Readers and 15 lecturers limiting the Central Council of Homoeopathy pattern strength as 43. It was also ordered that the position of Tutors will stand abolished with the appointment of the present incumbents in the post as Professor/Reader/Lecturer. It was also clarified that the excess 4 Tutors shall remain on supernumerary basis. It was ordered that the management will issue orders on promotion to the eligible hands against the newly created posts subject to the conditions mentioned in the order.
17. The controversy in writ petitions centered around the conditions imposed in Ext.P21 and, therefore, these conditions are extracted below for reference;
“(i) the employees regularised in the entry post will be eligible for promotion to the next higher grade/post on completion of the prescribed period of service for promotion as per Kerala Homoeopathic Medical College Service Special Rules subject to availability of vacancy. The date of common seniority as per the date of joining will be reckoned for fixing the eligibility for promotion from the Tutor grade to the Lecturer/Reader/Professor grades and not Departmental seniority. That is, if a vacancy of Lecturer arises in any department the senior most among the Tutor in all departments will be eligible for the post and the Lecturer post will be treated as sanctioned for that department.
(ii) (a) All members of the teaching staff in the Dr.Padiar Memorial Homoeopathic Medical College, Chottanikkara, will be given chance for option to a Department.
(b) Option should be submitted direct to the Principal, Dr.Padiar Memorial Homoeopathic Medical College, Chottanikkara. Orders finalising the options will be issued by the Management.
(c) The option once exercised shall be final.
(d) After finalising the option in the category of Professor and Reader the option in respect of the categories of Lecturer and Tutor will be accepted.
(e) Fifteen days time will be allowed to exercise option in each category from the date of issuance of this Government Order. Orders finalising the option would be issued immediately after the last date fixed for exercising option in each category.
(f) If more persons exercise option in a particular category over and above the sanctioned strength in that category option will be accepted on the basis of seniority.”
18. The above conditions of Ext.P21 show that all members of the teaching staff of the Medical College are given a chance to opt for the departments, which are to be submitted to the Principal of the Medical College. It is also ordered that after finalising the option in the category of Professor and Reader, the option in respect of the categories of Lecturer and Tutor will be accepted. Fifteen days time was also allowed for exercising the option. It was challenging the aforesaid condition in Ext.P21, the writ petitions were filed.
19. According to the appellants, their appointment, continuance, seniority and experience gained are all department wise and therefore, the option now allowed by Ext.P21 order dated 14/8/12 will have disastrous consequences not only on the members of the teaching staff but also on the academic excellence as well.
20. On the other hand, party respondents contended that their appointments were not department wise and that there were inter departmental movements. It was contended that when promotion is to be effected, in order to ensure that juniors do not steal over a march over the seniors in the College, it was necessary to permit option. On that basis, the contesting party respondents supported Ext.P21. In so far as the management is concerned, they supported the petitioners.
21. However, in the judgment under appeal, the leaned single Judge took the view that at best Ext.P21 reflected a policy involving change of conditions of service and that such policy changes are not to be interfered with in a proceedings under Article 226 of the Constitution of India. On that reasoning, the learned single Judge dismissed the writ petitions. It is in this background, these appeals are filed.
22. We heard Sri.N.Nandakumara Menon, the learned senior counsel for the appellant in WA No.209/14, Sri.V.V.Asokan, the learned senior counsel appearing for the management, which has also filed WA Nos.229, 232 and 234/14, the learned counsel for the appellant in WA No.218/14, Sri.P.Ravindran, the learned senior counsel appearing for respondents 4 and 5 in WA No.209/14, Sri.Thomas Abraham, the learned counsel appearing for the 6th respondent, Sri.C.Harikumar, the learned counsel appearing for the 7th respondent in WA No.218/14, Sri.Roy Chacko, the learned counsel appearing for the 1st respondent in WA No.229/13, the learned Government Pleader and the other counsel who appeared for the respective parties.
23. On behalf of the appellant in WA No.209/14, the contentions raised in general were that the appointment of teachers, their continuance and the experience gained was department wise and that the same has been accepted by all concerned. It was also pointed out that department wise seniority was fixed way back in April, 2002 and that the same having been accepted by all concerned, has become final. Counsel also contended that Kerala State Homoeopathic Medical Colleges Service Rule, the Mahatma Gandhi University Regulations and the CCH Regulations prescribed experience in the concerned subject as the experience required for promotion to the post of Professor. Therefore, according to the learned counsel, the inter departmental transfer, which can occur on account of the option which is now permitted, is impermissible. Learned counsel also brought to our notice Sections 19 and 20 of the Homoeopathic Central Council Act, which according to him, made it mandatory that the Colleges should follow the CCH Regulations and that for failure thereof, the consequence would be disaffiliation. Counsel also brought to our notice Ext.P22, the affidavit filed by the Government of Kerala in WP(C) No.11356/11 where the Government had taken a stand diametrically opposite to what it has taken not only in Ext.P21 order but also in the counter affidavit filed in these writ petitions. We were also shown Annexures (E) and (F) orders issued in the case of Athurasramam NSS Homoeo Medical College, which, according to the counsel, showed that the seniority was fixed department wise without permitting option. We were also shown Annexure (L) series, declarations made by the members of the teaching staff of the Medical College, where, teachers themselves had claimed only department wise experience.
24. However, on behalf of the contesting party respondents, it was submitted that in terms of Statute 35 of the M.G.University Statutes, it is for the educational agency to maintain seniority list. It was pointed out that Statute being as above, Annexure (D) seniority list finalised by the Controlling Officer and Principal on 20th of July, 2002 was invalid and void. In so far as the Special Rules that are referred to by the learned senior counsel for the appellant is concerned, according to the party respondents, both the Special Rules and the University Regulations contained saving provisions, which exempted teachers like them from the rigour of the rules in so fas their continuance in the college and promotion are concerned. They also contended that though the management had claimed that though respondents 4 and 5 were promoted as Lecturers, the same was not approved by the Syndicate in terms of Statutes 15 and 16 of the M.G.University Statutes. We were also referred to Ext.R6(h) and (i) orders issued in the case of Sree Vidyadhi Raja Homoeo Medical College, Nemom, Thiruvananthapuram where, according to the counsel, common seniority was fixed irrespective of the departments in which the teachers were posted. Counsel also cautioned us about the consequence that is likely to follow, in case option as ordered by the Government is not permitted by pointing out that for the sheer accident of teachers working in a discipline and creation of posts in those disciplines, the teachers would be stealing a march over their seniors causing great heart burn to the seniors. Learned counsel also told us that the College itself had in Ext.R4(g) reply given to a query under the Right to Information Act confirmed that they had not issued any legal seniority list of teaching staff. Our attention was also invited to the averments in para 7 of the counter affidavit in WP(C) No.20434/12 against which WA No.218/14 is filed, where averments have been made about the postings from one discipline to another that have allegedly taken place in the College. The contentions raised by Sri.V.V.Asokan, senior counsel who appeared for the management, which filed WA Nos.229, 232 and 234/14 are more or less similar to the contentions raised by the learned senior counsel for the appellant in WA No.209/14 and therefore are not separately stated.
25. In so far as WA Nos.229, 232 and 234/14 filed by the Medical College are concerned, learned counsel appearing for respondents 4 and 5 raised an objection on the maintainability of the appeals itself.
26. The above being the contentions that were urged before us, we shall first deal with the contention of the learned senior counsel for respondents 4 and 5 on the maintainability of WA Nos.229, 232 and 234/14. As we have already stated, these appeals are filed by the Medical College against the judgment of the learned single Judge in WP(C) Nos.21834/12, 20434/12 & 20502/12 respectively. These writ petitions were filed by the teachers of the college who were aggrieved by the conditions imposed in Ext.P21 order issued by the Government permitting option. Admittedly, the Medical College did not file any writ petition challenging Ext.P21 order. By the judgment under appeal, the learned single Judge dismissed the writ petitions. It is challenging these judgments, the appeals are filed by the management.
27. The contention raised by the learned senior counsel for respondents 4 and 5 was that since the Medical College accepted Ext.P21 without filing any writ petition before this Court, law does not permit them to file appeals against the judgment of the learned single Judge dismissing the writ petitions filed by teachers.
28. However, this contention of the learned single Judge is sought to be resisted by the learned counsel appearing for the appellants by referring us to Rule 43(5) of the Kerala High Court Rules and Rules 4 and 22 of Order XL1 of the C.P.C. He also referred us to the Supreme Court judgment in Mahant Dhangir
v. Madan Mohan (AIR 1988 SC 54) and the judgment of the learned single Judge of this Court in SA No.821/81. Rule 43(1) of the Kerala High Court Rules occur in Chapter III which provides for the form and institution of proceedings. Rule 43 deals with appeals under Section 5 of the High Court Act and sub section 5 thereof provides that the provisions of Orders XLI and XLIA of the Code shall apply, as far as may be, to appeals presented under this Rule. Therefore, Rule 43(1) shows that the appeals presented under the rule are appeals against an appellate decree or order which has been disposed of by single Judge of this Court.
Therefore, Rule 43 cannot have any application in so far as the original proceedings instituted in this Court, which are governed by the provisions contained in Chapter XI of the Kerala High Court Rules. Therefore, neither this Rule nor the provisions of Order XLI nor the decision of the Supreme Court in Dhangir's case (supra) or the judgment of this Court in SA No.821/81, rendered in the context of Order XLI of CPC, can have any application in so far as these writ appeals are concerned.
29. Chapter X1 of the Kerala High Court Rules governing proceedings under Articles 226, 227 and 228 of the Constitution of India, incorporates Rule 159 governing appeals from decisions of Single Judges. Rule 159(1) provides that the procedure prescribed for appeals in Order XLIA of the Code, excluding Rule 2 thereof, shall as far as may be, be followed in appeals from decisions of Single Judges in writ matters. Therefore, the provisions relied on by the learned senior counsel for the appellants cannot be called in aid to support his contention that the appeals filed by him against the judgment dismissing a writ petition filed by somebody else are maintainable. Resultantly, the contention raised by the learned senior counsel for respondents 4 and 5 that WA Nos.229, 232 and 234/14 filed by the Medical College are not maintainable deserves to be upheld and we do so.
30. Turning to the merits of the remaining appeals, it is true that the orders that were issued by the management prior to Annexure A communication from the Central Council of Homoeopathy did not mention the department to which the appointments were made. However, by Annexure A Circular dated 31/7/98, Medical Colleges were instructed that henceforth appointment shall be made subject wise. Annexure (H), (I), (J), Ext.R3(6) series and Annexure L series show that the appointments made subsequent to Annexure A were department wise. In this context, we also should mention that Annexure L(14), L(8) and L(9) are the declarations that were made by respondents 4, 5 and 6 respectively.
31. It is true that in para 7 of the counter affidavit filed in WP(C) No.20434/12, averments have been made that there have been instances in the Colleges where transfers have taken place inter discipline wise. However, these averments are too vague and do not indicate as to whether such proceedings have taken place subsequent to Annexure A, the circular of the Central Council of Homoeopathy referred to above. It is also to be mentioned that the said claim made in the counter affidavit has been denied by the management. We have already referred to the settlement of seniority that took place way back in 2002. In Ext.R3(3), the judgment in OP No.19111/2000, staff strength was ordered to be fixed. That judgment was set aside in WA No.2255/2000, a copy of which is Ext.R3(4). It was pursuant to the directions of this Court that by Ext.R3(5), the Principal and the Controlling Officer fixed the seniority, which was done as early as in 20/7/2002. Reading of Ext.R3(5) order shows that not only that it was in compliance with the judgment of this Court but also that the fixation of the seniority was after hearing all affected parties. The seniority thus fixed on 20th of July, 2002 was department wise. Nobody challenged this seniority list and as a result, this seniority list has attained finality and is binding on all concerned.
32. It is true as contended by the learned counsel for the respondents 4 and 5 that Statute 35 of the M.G.University Statutes requires that seniority should be settled by the educational agency. However, when the seniority has been settled by the Controlling Officer in pursuance of the directions of this Court in the judgment in WA No.2255/2000 and when that seniority list has not been challenged by any one of the parties for the last more than 12 years, it is not now open to the members of the teaching staff to contend that since the seniority list was not fixed by the educational agency, the list does not have any validity.
33. It is also true that the appellant in WA No.209/14 was not included in the seniority list as pointed out by respondents 4 and 5. However, following Exts.P1, P2 and P3 judgments in OP No.12711/2002, WA No.189/05 and connected cases and civil appeal arising therefrom, 8 members of the teaching staff who were excluded from the staff strength that was fixed by the Government in Ext.R4(d) and in Ext.R3(5) seniority list got included therein following Exts.P4 and P5 orders, which were issued by the Government on 18/11/2006 and 11/2/2010 respectively.
34. We also agree with the learned counsel for the respondents that in Ext.R4(g) reply given by the management to a query made under the Right to Information Act, they had stated that there was no legal seniority list for the members of the teaching staff. The fact that what is stated in Ext.R4(g) is wrong is evident not only from Ext.R3(5) dated 20/7/2002 mentioned above but also from Annexure (B) and (C), the query made by the appellant in WA No.209/14 and the reply that was given by the management confirming the existence of the seniority list. Therefore, nobody can brush aside Ext.R3(5) seniority list of 20/7/2002 relying on Ext.R4(g), the wrong reply given by the management to a query made under the Right to Information Act.
35. We are also surprised by the stand taken by the Government in this matter. Ext.P21, the order impugned in these writ petitions has been issued by the Government on the basis that there has not been any department wise seniority prevailing in the college. This stand is reiterated in the counter affidavit filed in this Court, where, in para 9 and 19, it is stated thus;
“9. It is submitted that the appointments made in the College were not in the Departmental basis. At the beginning of the college under Direct Payment System only a few Departments functioned and Teaching staff appointed during the period are absolutely senior than those appointed later in the subsequently developed Departments. All Departments are not necessary for 1st and 2nd years BHMS Courses. Now there are 12 Departments in the College and those appointed later are not eligible for promotion to the post of Professor/Reader/Lecturer. Since all the appointees are with same qualifications and more over there is no specialisation in Homoeopathic Medical Colleges for appointment in the entry cadre at the time of appointment. Management of Dr.Padiar Memorial Homoeopathic Medical College, Chottanikkara, Ernakulam should have appointed staff to the particular Department as per the Central Council of Homoeopathy norms and should have prepared the seniority list of teaching staff accordingly. The appointment made so should have been approved by the University concerned. The Management of the Dr.Padiar Memorial Homoeopathic Medical College, Chottanikkara, Ernakulam have not followed the Central Council of Homoeopathy/University guide lines. No departmental confirmation is granted to any staff in the College either by Government or by University Regulations at the time of appointing teachers in the College. Earlier Government have issued certain direction to draw and disburse salary on the basis of appointments made by Management and that was only for payment of salary to staff. Promotions arising consequent on post creation will adversely affect the senior teaching staff eligible to get promotion as a result of post creation working in the various Department if it is done without giving chance for option. Hence certain conditions were laid in the Government Order dated 14/8/2012 (Ext.P21) to rectify the grievance of the Senior most teachers.
19. It is submitted that the appointments made in the College were not in the Departmental basis. At the beginning of the college which was later brought under Direct Payment System, only a few Departments functioned and Teaching staff appointed during the period are absolutely senior than those appointed later in the subsequently developed Departments. All Departments are not necessary for 1st and 2nd years BHMS Courses. Now there are 12 Departments in the College and those appointed later are not eligible for promotion to the post of Professor/Reader/Lecturer. Since all the appointees are with same qualifications and more over there is no specialisation in Homoeopathic Medical Colleges for appointment in the entry cadre at the time of appointment. Management of Dr.Padiar Memorial Homoeopathic Medical College, Chottanikkara, Ernakulam should have appointed staff to the particular Department as per the Central Council of Homoeopathy norms and should have prepared the seniority list of teaching staff accordingly. The appointment made so should have been approved by the University concerned. The Management of the Dr.Padiar Memorial Homoeopathic Medical College, Chottanikkara, Ernakulam have not followed the Central Council of Homoeopathy/University guide lines. No departmental confirmation is granted to any staff in the College either by Government or by University Regulations at the time of appointing teachers in the College. Earlier Government have issued certain direction to draw and disburse salary on the basis of appointments made by Management Department and that was only for payment of salary to staff. Promotions arising consequent on post creation will adversely affect the senior teaching staff who are working in the various Department eligible to get promotion as a result of post creation if it is done without giving chance for option.”
36. However, Ext.P22 is also an affidavit filed by the very same Government of Kerala in WP(C) No.11356/11. In that counter affidavit, Government have taken a diametrically opposite stand as is evident from paragraphs 3 to 9, which are extracted below for reference;
“3. It is submitted that for the staff fixation in Dr.Padiyar Memorial Homoeopathic Medical College, the Government have not considered the staff designation/category holding prior to the Direct Payment System introduction. The seniority list submitted by the management for fixation only is considered. As directed by the Government, the Principal & controlling officer, Government Homoeopathic Medical College, Thiruvananthapuram furnished the list of 40 senior most and qualified teaching staff based on departmental seniority and 50 non-teaching staff of the Dr.Padiyar Memorial Homoeopathic Medical College, Chottanikkara as on 1/1/2000 to be considered for staff fixation. Thereupon, Government examined the matter and approved 40 senior most and qualified teaching staff and 50 non-teaching staff of the 1st respondent college as on 1/1/2000. The said seniority list was prepared taking into account the seniority of teachers working in the concerned departments. As per the direction of this Hon'ble Court on 19/7/2001 while disposing Writ Appeal 2255/2000, the Principal & Controlling Officer heard the aggrieved parties as early as on 16/8/2001. All the documents relating to the teachers as well as the non- teaching staff which were produced by the authorities were scrutinised and after a long discussions ultimately decided to fix the staff strength and seniority list of the teachers of the 1st respondent college based on the department wise seniority as previously done in the Athurasramam NSS Homoeo Medical College, Kurichy vide Order No.4320 /C1/ 8/ 00/ GHMCT dated Thiruvananthapuram 20/7/2002. The seniority list of teaching staff of the 1st respondent college was approved and issued. A true copy of the Order No.4320/C1/8/00/GHMCT dated 20/7/2002 along with the seniority list is produced herewith and marked as Exhibit R2 (b). The regulation issued by the Central Council of Homoeopathy stipulate that a teacher working in one department cannot be appointed in another department. The academic council of the MG University also stipulates the same method of appointment and promotion.
4. As per the Central Council of Homoeopathy Regulations there are 12 departments in Petitioner College which is evidenced in G.O (MS) No.99/02/H&FWD dated 25/4/2002. As per the GO 99/02/H&FWD dated 25/4/2002 all the 40 teaching staffs coming under fixation have been posted in different departments. So there is no need for receiving options from the teaching staffs for preparing department wise seniority list. Promotion to the higher post can be done only by considering the fixation order and the Kerala State Homoeopathic Medical colleges service rules-2001.
5. There is no rules and regulations framed by the government for promotion posts in private Homoeopathic Medical colleges. As per GO(P) No.79/2001/H&FWD dated 19.3.2001 Government of Kerala formulated a service rule for teachers of Government Homoeopathic Medical College named Kerala State Homoeopathic Medical Colleges service rules 2001 and the same criteria is following for promotions of teachers in private Homoeopathic Medical Colleges.
6. The 1st respondent was not authorised to issue a memo inviting teachers to submit requests for promotion so the Exhibit P10, P11 and P12 are irrelevant.
7. The Kerala State Homoeopathic Medical College service rule 2001 clearly suggest that the criteria for promotion is only on merit and ability, seniority being considered only where merit and ability are approximately equal, in the particular department. Seniority is considered only from the date of introduction of direct payment system and the prior service before direct payment system will not be considered for any benefit. Promotion to a post in a department should be done only from the feeder category (Lecturer) of that particular department. So department wise seniority list is inevitable for giving promotions. So the Exhibit P13 and P14 are irrelevant.
8. The petitioners can be considered for promotion as reader on the basis of seniority only if there is a post of reader is existing in that department. According to the GO(MS) No.99/02/H&FWD dated 25.4.02 her post of Lecturer in the department of physiology and bio chemistry has approved with effect from 1/1/2000 and received all monetary benefits, without any objection and she is the second senior Lecturer in that list. The promotion can be effected as per Kerala State Homoeopathic Medical College service rules 2001. True copy of the above rule is produced herewith and marked as Exhibit R2(C).
9. It is submitted that after the introduction of direct payment system, appointments are made with reference to each particular departments. The petitioners averments that they should be given opportunity to exercise option on the creation of departments cannot be considered for the reason that the teacher who is working in a Department concerned with a particular subject will not be able to handle classes in another Department which they have no experience at all. As stated above, seniority list of the teachers of the 1st respondent college in all the Departments are settled and approved and at this distance of time the same cannot be shuffled or reconstituted as per central council of Homoeopathy norms. “Teaching Experience” means teaching experience in the subject concerned in a Homoeopathic College.”
37. In the counter affidavit filed in this writ petition, no reason whatsoever is disclosed by the State Government for the change of stand now taken by it. In such circumstances and in the light of the facts as disclosed in the pleadings and particularly Ext.R3(5) referred to above, we reject the contentions in the affidavit filed in this writ petition.
38. In so far as the regulations framed by the M.G.University and the Kerala Sate Homoeopathic Medical Colleges Service Rule, 2001, framed under the Kerala Public Services Act, 1968 are concerned, what is relied on by the learned counsel for respondents 4 and 5 are the saving clauses contained therein. Ext.P13 is the regulations framed by the M.G.University relating to the qualifications, mode of appointment and other conditions of appointment of teachers of Homeopathy Colleges. Though teaching experience has been defined as the physical teaching experience gained as teacher appointed on regular basis in a recognised Homoeopathic Medical College in the subject concerned, Regulation 4 provides that nothing contained in the regulations shall adversely affect any person who is a member of the service on the date the regulations came into force in respect of any matter such as continuance in the post and the promotion to higher categories. It is also clarified that the regulation shall have effect from 19/3/2001.
39. The Kerala State Homoeopathic Medical College Service Rule, 2001, also contains Rule 10, which provide that nothing contained in the rules shall adversely affect any person who is a member of the service on the date the Rules came into force in respect of any matter such as continuance in the post and promotion to higher categories. These rules were issued by Government Order dated 19/3/2001 and were published in the Kerala Gazette dated 21.3.2001. The contention raised before us is that the respondents having entered service prior to the implementation of the Regulations and the Special Rules, are entitled to the protection of the saving clauses in the University Regulation and the Special Rules.
40. However, the provisions of the Special Rules and the University Regulations cannot be understood divorced from the regulations framed by the Central Council of Homoeopathy, a copy of which is Ext.P19 and Ext.P20 in the writ petition. Ext.P20 is the Homoeopathy (Minimum Standards of Education) Regulations, 1983, framed by the Central Council of Homoeopathy and approved by the Government of India in exercise of the powers under Sections 20 and 33 of the Homoeopathy Central Council Act, 1973. The parties are in agreement that the posts of Professor in relation to which they are fighting are in allied medical subjects. The experience prescribed in the 1983 Regulation is three years teaching experience as Reader or Assistant Professor or 10 years teaching experience in the subject concerned in the Homoeopathic or Allopathy Medical College. However, in so far as the posts of Reader/Assistant Professor and Lecturer in Allied Medical subjects are concerned, though the length of experience has been prescribed in Clause 5 and 7 of 1983 Regulations, there is no prescription that the experience shall be in the subject concerned as in the case of Professors.
Ext.P19 is the Homoeopathy (Minimum Standards of Education), Management Regulations, 2002. Here also, Rule 3 provides for the qualifications for the post of Professor in Allied Medical subjects. The educational qualification prescribed is post graduate qualification in Homoeopathy with two years of teaching experience as Reader in the concerned subject or a Degree in Homoeopathy with six years of teaching experience as Reader in the concerned subject or Diploma in Homoeopathy of not less than 4 year duration with 10 years teaching experience in the concerned subject in Homoeopathic Medical College.
41. In so far as Reader in Allied Medical subjects is concerned, the qualification prescribed also is that Post Graduate qualification in Homoeopathy with four years of teaching experience as Lecturer in the concerned subject in the Homoeopathic College or a Degree in Homoeopathy with 10 years teaching experience as Lecturer in concerned subject or Diploma in Homoeopathy of not less than four years duration with 15 years of teaching experience in the subject concerned in a Homoeopathic College. However, this regulation contains a proviso to the effect that teaching experience in the concerned subject of persons appointed as regular teaching staff in Homoeopathic College (prior to the notification of the amendment regulations) fulfilling the prescribed requirements of the 1983 regulations shall be counted for appointment of teaching staff as per Annexure to the regulations. Therefore, to become a Professor, the post to which the parties are fighting for, since under the 1983 regulations, the experience prescribed is the teaching experience in the concerned subject, the proviso incorporated in 2002 Amendment Regulations does not absolve them from this requirement.
42. Therefore, the saving provisions contained in the Special Rules and the Regulations framed by the M.G.University cannot be of assistance to the respondents to contend that they are entitled to promotion irrespective of experience in the concerned subject. Therefore, this contention raised by the party respondents does not merit acceptance.
43. The ambition of the party respondents to advance in their career is quite understandable. But, however, the academic requirements and academic excellence cannot be sacrificed for ensuring that the teachers get avenues of promotion in their profession. In so far as these cases are concerned, we have seen that there are 12 disciplines in the Medical College and teachers are teaching in these 12 disciplines for several years. Therefore, the experience gained by them is in the disciplines in which they are teaching. By Ext.P21, the teachers are given option to opt for new disciplines. As a result of the option thus exercised, teachers who are fairly senior in one department are likely to opt for other department where they have possibility to become Professors or Head of the Departments. This is irrespective of whether they have worked or not worked in those departments at any stage of their career.
44. It is quite likely that in the process, a senior teacher in the Department of Forensic Medicine can become the Professor and Head of the Department in the Department of Practice of Medicine. Similarly, a Lecturer/Tutor in the Department of Anatomy can become a Head of the Department in Department of Obstetrics and Gynaecology. If this happens, the result would be that the inexperienced optees will be heading these departments and teaching students without any knowledge or experience whatsoever. That will be disastrous to the academic excellence. We, therefore, strongly feel that the Government should not have permitted options and thus destroy the academic balance that is now prevailing in the College and also disapprove the stand adopted by the Government in Ext.P21 and in the counter affidavit filed before this Court as compared to the stand they took in Ext.P22 affidavit filed in WP(C) No.11356/11.
For all these reasons, we are unable to sustain the judgment of the learned single Judge. Therefore, the judgment of the learned single Judge will stand set aside. WA Nos.209/14 and 218/14 will stand allowed. However, WA Nos.229, 232 and 234/14 will stand dismissed as not maintainable.
Rp //True Copy// PA to Judge Sd/-
ANTONY DOMINIC JUDGE Sd/-
ANIL K. NARENDRAN JUDGE