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2001 DIGILAW 734 (KER)

P. Muraleedharan v. State of Kerala

2001-12-11

M.R.HARIHARAN NAIR

body2001
Judgment :- The bone of contention in this case is the right to be promoted as Principal of Government Homoeo Medical College, Kozhikode in the vacancy that arose on 1.5.1996. 2. The petitioner has a diploma in Homoeopathic Medicines acquired in the year 1986 and also a Masters Degree in Homoeopathy obtained from the Rajasthan University. He entered service on 29.3.1974 as a Medical Officer in the Homoeopathic Department and subsequently was promoted as Assistant Professor on 3.3.1985 and thereafter as professor on 16.3.1987. The third respondent is senior to the petitioner. He was promoted as Lecturer (re-designated as Assistant Professor subsequently) on 28.11.1981 and was promoted as Professor on 13.2.1986. According to the petitioner, not withstanding the fact that the third respondent is senior as Professor, the petitioner is entitled to be appointed as Principal in the vacancy that arose on 1.5.1986 because he has got preferential qualification, viz. Masters Degree. 3. The third respondent filed a counter. But at the time of hearing, he was not represented through any counsel. Consequent on demise of the first counsel for the third respondent, he had been given fresh notice directly and Adv.Mr.Rajeev Lakshmanan had filed vakalath for him then; but he was also absent during hearing. The learned Government Pleader pointed out that the petitioner is disentitled to be appointed as Principal for the reason that he did not have the required administrative experience of five years and also because he did not have the research experience which alone is considered as preferential qualification. On the other hand, the third respondent has the necessary administrative experience and by applying normal criteria for promotion as Principal, the third respondent, by virtue of the seniority, was entitled to get promoted and that is why Ext.P9 order was passed. 4. Going by the arguments advanced by the learned counsel for the petitioner and the learned Government Pleader, the questions that arises for decision are: (a) Whether the petitioner has necessary administrative experience necessary for promotion as contemplated by rules? (b) Whether the petitioner has the research experience contemplated as preferential qualification for appointment as Principal? (c) Whether the third respondent has got the necessary administrative experience for five years, which is the condition precedent for his consideration for the post of Principal? 5. (b) Whether the petitioner has the research experience contemplated as preferential qualification for appointment as Principal? (c) Whether the third respondent has got the necessary administrative experience for five years, which is the condition precedent for his consideration for the post of Principal? 5. Though the relevant portion of the required qualification for the post of Principal is not produced as an Exhibit, the details thereof are averred in para 6 of the Original Petition. At the time of hearing, a copy of the Homoeopathic (Minimum Standards of Education) Regulations, 1983 was also made available for perusal. Para II of Annexure E of the Regulations deals with the qualifications required for appointment as Principal of Homoeopathic Medical College having degree course which reads as follows: Essential qualifications A. (i) A recognized diploma after 4 years’ duty or a degree in Homoeopathy. OR (ii) Qualification included in the III Schedule of the Homoeopathy Central Council Act, 1973. B. Ten years’ teaching experience with 5 years administrative experience in a recognized homoeopathic college or hospital. Preferential Qualifications A. Having both a recognized diploma after 4 years’ study or a degree in homoeopathy and any qualification included in the III Schedule of the Homoeopathy Central Council Act. B. Research experience in Homoeopathy in an institution recognized by Central Council for Research in Indian Medicine and Homoeopathy or Central Council for Research in Homoeopathy of the Central Government or a State Government. Age Not more than 50 years as on the last date of receipt of application for the post. Age relaxable for an exceptionally qualified person. 6. Exhibit R1(B) produced by the first respondent is a clarification issued by the Central Council of Homoeopathy. According to this, the words “Administrative experience” referred to in the Homoeopathy (minimum standards of education) Regulations, 1983 means “administrative experience gained as a head of department/institution/hospital of Homoeopathy” which is required for the post of Principal of a Homoeopathic Medical College. A joint reading of the qualifications prescribed for the post of Principal along with Ext.R1(B) makes it clear that going by the essential qualifications, the third respondent, by virtue of his seniority over the petitioner, can normally claim the post of Principal, provided he has administrative experience as “a head of department/institution/hospital of Homoeopathy”. 7. A joint reading of the qualifications prescribed for the post of Principal along with Ext.R1(B) makes it clear that going by the essential qualifications, the third respondent, by virtue of his seniority over the petitioner, can normally claim the post of Principal, provided he has administrative experience as “a head of department/institution/hospital of Homoeopathy”. 7. Likewise the petitioner, by virtue of his qualification of M.D. can stake a valid preferential claim for the post, if he has research experience in Homoeopathy in an institution recognized either by Central Council for Research in Indian Medicine and Homoeopathy or by the Central Council for Research in Homoeopathy of the Central Government or of the State Government. 8. The State has a contention that he Master’s Degree obtained by the petitioner from the Rajasthan University, being one gained as an external candidate, is not valid and also that no research work is involved for securing the said degree. It is seen that the State had raised a contention that the degree itself was invalid when the petitioner claimed the revised scale applicable for Professors with P.G.qualification. In Ext.P16 judgment, this court found that the contention of the State was incorrect; that under Ext.P5, which is marked as Ext.P11 in the present Original Petition, the M.D. degree of Rajasthan University granted up to 15.11.1997 is recognized as equivalent to M.D. degree of the Kerala University and that the petitioner who is thus holding a valid M.D. degree is entitled to get revised scale with effect from 1.11.1997. 9. The question to be considered further is whether the petitioner has research experience. The Central Council of Homoeopathy, in the Regulations of 1989, produced in the case as Ext.P12, has prescribed the requirements to be complied with by external candidates seeking the Masters degree. Under Clause 14(3) it is a requirement that the candidate should prepare and submit to his guide a dissertation atleast nine months prior to the holding of the final examination. But still the question arises whether the dissertation that he might have produced before the University can be taken as research experience which is a necessary concomitant of the preferential qualification of the Master’s degree secured by external candidates like the petitioner for appointment as Principal. First of all the dissertation concerned is not produced before the court. But still the question arises whether the dissertation that he might have produced before the University can be taken as research experience which is a necessary concomitant of the preferential qualification of the Master’s degree secured by external candidates like the petitioner for appointment as Principal. First of all the dissertation concerned is not produced before the court. Secondly no competent authority has examined that dissertation to see whether it involves research work which is mandatory under the Regulations to be considered as a preferential qualification. If it is found that the Masters Degree obtained by the petitioner involves research work for the purpose of preferential qualification contemplated in the Regulations of 1983, certainly the petitioner would be entitled to get preference in the matter of appointment as Principal to the vacancy in question subject to other qualifications and requirement. It appears from Ext.P9 that there was no consideration of the claim of the petitioner based on the relevant aspects afore mentioned. 10. Even assuming that the petitioner is not entitled to stake a preferential claim for the post, the question would still arise whether he has the essential qualification of 5 years’ administrative experience. Under Ext.R3(j) clarification administrative experience means such experience gained as head of a department or of an institution or of a hospital of homoeopathy. Though Ext.R3(j) was issued only on 9.11.96 it is stated therein that the said clarification was approved by the Central Council of Homoeopathy on 15.3.1996 it is stated therein that the said clarification was approved by the Central Council of Homoeopathy on 15.3.1996, ie. before the date of occurrence of the vacancy in question. As such the question arises whether the petitioner has administrative experience in one of the three areas aforementioned. 11. According to the petitioner, he has got necessary administrative experience because of being put in charge of the administration of the Homoeo Medical Hospital, Trivandrum with charge of 50 beds pursuant to Exts.P3 and P4. As such the question arises whether the petitioner has administrative experience in one of the three areas aforementioned. 11. According to the petitioner, he has got necessary administrative experience because of being put in charge of the administration of the Homoeo Medical Hospital, Trivandrum with charge of 50 beds pursuant to Exts.P3 and P4. According to the learned Government Pleader, these do not provide the administrative experience required since at the time when Ext.P3 was passed the Homoeopathic Medical College, Trivandrum was under the control of the Homoeopathic Department and Ext.P3 is simply an order passed by the Principal of the College and it directs the petitioner only to look after the day to day affairs of the outpatient and inpatient sections including attendance of tutors and also directs him to see the admission of inpatients and their discharge as also cleanliness of the O.P. section and I.P. section and the administrative capacity was retained by the Chief Medical Officer of the Homoeo department. It is also argued by the learned Government Pleader that the administrative experience required for consideration is not such temporary charge given by a Principal but regular administrative control such as attending the establishment routine, budget utilization control of para medical staff, Medical Officers, distribution of diet and medicines to the patients. Notwithstanding the above contention, the fact remains that the petitioner was imparting Clinical training to the students and looking after the affairs of patients in 50 out of 75 beds of the hospital concerned under Exts.P3 to P5. Whether such management of the hospital for a considerably long time albeit as a delegate would earn him administrative experience as contemplated under the Rules is also a matter which should attract the attention of the Government. Ext.P9 has not approached the question from the above perspective. 12. In view of the clarification about which reference has already been made, experience as head of Department is a valid qualification. The question then is whether the third respondent had such experience. Learned counsel for the petitioner pointed out that during the period when the third respondent was working as Professor, there was no designated officer or a post in the college by name Head of department. Though new special rules have come into force with effect from 19.3.2001, the said position continues. Learned counsel for the petitioner pointed out that during the period when the third respondent was working as Professor, there was no designated officer or a post in the college by name Head of department. Though new special rules have come into force with effect from 19.3.2001, the said position continues. It is also pointed out in this regard that there was a request contained in Ext.P14 for granting approval to the staff pattern and for designating senior most Professor/Reader as heads of Department and that till this date, the Government has not passed any order designating any Professor or Reader as head of Department. In such circumstance, merely because the third respondent was working as Professor in a department whether he can be taken as head of department for the purpose of consideration for promotion as Principal for which five years administrative experience in a recognized Homoeopathic College or Hospital as head of department is necessary is also a matter that should attract the attention of the Government. Since Ext.P9 does not show that the Government has considered these relevant aspects, I am of the view that the matter has to be remitted to the Government for further consideration. 13. Even though there is a prayer in the Original Petition for quashing Ext.P9, I do not think it necessary to pass any such order at this stage, the reason being that even a perusal of Ext.P9 shows that what is contemplated there is only a temporary arrangement under Rule 31(a)(i) of the General Rules and it was not a regular promotion that is passed by the Government. The third respondent has already continued in the post for more than five years and it is unnecessary to disturb the status quo at this stage. Ext.P9 does not have finality and it will be purely a temporary working arrangements until regular promotion is effected. 14. In these circumstances, the question whether it is the petitioner or the third respondent who is entitled to be promoted as Principal of the Homoeopathic Medical College, Kozhikode in the vacancy that arose on 1.5.1996 is left to the first respondent for fresh consideration. 14. In these circumstances, the question whether it is the petitioner or the third respondent who is entitled to be promoted as Principal of the Homoeopathic Medical College, Kozhikode in the vacancy that arose on 1.5.1996 is left to the first respondent for fresh consideration. To enable this the petitioner will produce before the 1st respondent the copy of the dissertation that he produced before the Rajasthan University in connection with his M.D. degree or other reliable evidence regarding the research work allegedly done by him, accompanied by an affidavit. Necessary orders making regular appointment in the post of Principal will be passed after considering all relevant aspects. What is expected is a speaking order touching upon all the aforesaid aspects with reference to the Rules and Regulations concerned. 15. It is brought to the notice of the court by the learned counsel for the petitioner that the petitioner is to retire in May, 2002 and that urgent orders are required lest the petitioner’s claim would become infructuous. 16. Considering the said submission, it is made clear that fresh orders in the matter should be passed by the first respondent positively, within a period of two months from the date on which a copy of this judgment and the relevant exhibits are produced before the first respondent. Original Petition is disposed of as above.