Holding

All holders of recognized homoeopathic qualifications who are registered under the Medical Council are entitled to the direct payment system, and the eight excluded teachers must be included in the staff list according to seniority.

Summary

The State of Kerala introduced a "direct payment system" for staff of Dr. Padiar Memorial Homoeopathic Medical College, fixing 40 senior teaching and 50 non‑teaching staff for salary payment. Eight teaching staff members (the respondents) were excluded from the list despite holding recognized homoeopathic qualifications and permanent registration under the Medical Council. They challenged the exclusion before the High Court, which quashed the Government Order and directed their inclusion based on seniority. The State appealed, arguing that the excluded staff lacked registration under Rule 49 and were therefore ineligible. The Supreme Court examined the Travancore‑Cochin Medical Practitioners Act, its Rules, the Central Council of Homoeopath Regulations, and the Homoeopathy Central Council Act, concluding that any holder of a recognized qualification with registration is eligible for the direct payment benefit. Consequently, the Court ordered that the eight respondents be accommodated in the staff list according to seniority and dismissed the appeals.

Issues considered

Whether the eight excluded teaching staff are eligible for the direct payment system under the Travancore‑Cochin Medical Practitioners Act, 1953 and related regulations.
Whether registration under the Medical Council satisfies the qualification requirement for the post of tutor.
Whether the exclusion of the eight staff members amounts to unlawful discrimination.

Legislation cited

Homoeopathy Central Council Act, 1973s. 15, s. 23, s. 27
Travancore‑Cochin Medical Practitioners Act, 1953s. 23, s. 27

Subjects

direct payment systemdiscriminationregistrationhomoeopathic medical practitionerseligibilitysenioritygovernment orderTravancore-Cochin Medical Practitioners ActHomoeopathy Central Council Act

Judgment

[2009] 2 S.C.R. 946

A STATE OF KERALA & ANR.
v
MAHESH KUMAR & ORS.
Civil Appeal Nos. 1147- 1151 of 2009

FEBRUARY 23, 2009
B
[ S.8. SINHA AND DR. MUKUNDAKAM SHARMA, JJ.]
Travancore..:cochin Medical Practitioners Act, 1953 :

ss. 23 and 27 - Travancore-Cochin Medical Practitioners
c Rules - r. 49 - Central Council of Homoeopath (Minimum
Standards of Education) Regulations, 1983 -Introduction of
direct payment system in Medical College by Government
Order - 40 senior most and qualified teaching staff and 50
non-teaching staff brought under the direct payment system
0 excluding eight members of teaching staff - Challenge to -
Held: Said members are holder of recognized qualification
,
and have the registration thus, should not be discriminated -
They should get similar benefits as are given to other persons
- Thus, direction issued in that regard - Said members to be
E accommodated in terms of seniority - Government Order G 0.
(MS) No. 10012000 ds) H & FWD dated 25.4.2000 and GO.
(MS) No. 991021 H & FWD dated 25. 4. 2002.
In terms with the Government Order dated 25.4.2000
direct payment system was introduced in the
.. ..,
!

F Homoeopathic Medical College. A list of 40 seniormost
and qualified teaching staff and 50 non-teaching staff was
furnish~d for staff fixation. By another Government Order,
the said list was approved. The said staff was to be
recognized as eligible for the said benefit. However,
G respondents-members of the teachin.g staff were
excluded from the approved list. Respondents challenged
their exclusion. Single Judge of High Court quashed the
' .,
Government Order to the extent it excluded the
respondents from the list of qualified teaching staff. It
H 946
STATE OF KERALA & ANR V. 947
MAHESH KUMAR & ORS.

directed to include the respondents in list on the basis of A
· ~ seniority thereby entitling them to salary under the 'direct
payment system'. Division Bench of High Court upheld
the order. Hence the present appeals.
Dismissing the appeals, the Court
B
HELD: 1.1 On a careful reading of Central Council of
Homoeopath (Minimum Standards of Education)
Regulations, 1983; ss. 23 and 27 of the Travancore-
Cochin Medical Practitioners Act, 1953; Rule 49 of the
Travancore-Cochin Medical P~actitioners Rules; and s. 15 c
of the Homeopathy Central Council Act, 1973 every holder
of recognized qualification is eligible for registration under
the Medical Council. Therefore, the remaining 8
respondents are also eligible to get the benefit of 'direct
payment system'. The registration granted by the Medical 0
Council on the basis of recognized qualification fully
satisfied the qualification prescribed for the post of tutor,
namely, permanent- registration under the Medical
Council. [Para 18] [956-H; 957-A-B]
1.2 When 40 teaching and 50 non-teaching staff have E
been brought within the purview of the 'direct payment
system' by the appellant, there is no justification as to why
only the remaining 8 persons should be deprived from
-i getting the same benefit. W,hen the State Government has
accepted the responsibility with regard to the said 40 F
teaching and 50 non-teaching staff, the remaining 8 who
are otherwise qualified and have tile registration should
not be discriminated upon. They should also get the
similar benefits as are being given to other 40 persons.
{Para 19] [957-C-D] G
1.3 In the peculiar facts and circumstances, it is
\ directed that the remaining 8 persons be also given the
same benefit as has been given to 40 teaching and 50
non-teaching staff and they should be accommodated in
terms of their seniority. [Para 20] [957-E] H
948 SUPREME COURT REPORTS [2009] 2 S.C.R.

A CIVIL APPELLATE JURISDICTION : Civil Appeal No.
>
1147-1151 of 2009
From the Judgement and Order dated 03.06.2005 of the
High Court of Kerala at Ernakulam in WA. No. 189, 259, 323,
334 and 229 of 2005.
B
C.S. Ranjan, G. Prakash, Beena Prakash, Ramesh Babu
M.R. for the Appellant.
R. Rajendran Nair, Shakil Ahmed Syed, K. Radhakrishnan, '1>

c S. Udaya Kumar Sagar, Bina Madhavan Gaichangpoo
Gangmei, T.L.V. Iyer, Subraonium Prasad, Jay Kishore Singh,
Wills Mathews Arun Basil, M.K. Michael, H.L.K. Puri, Romy
Chacko, C.K. Sasi, for the Respondent.
DR. MUKUNDAKAM SHARMA, J.
D
~
1. Leave granted.
2. These appeals filed by the State of Kerala are directed
against the judgment and order dated 3.6.2005 passed by the r
Division Bench of the High Court of Kerala at Ernakulam
E
affirming the order dated 15.9.2004 of the learned Single Judge
of the same· High Court.

3. The relevant facts for disposal of the appeals are as
under: ~

F
Dr. Padiar Memorial Homoeopathic. Medical Colleg.e,
Chottanikkara (hereinafter referred to as 'Padiar Medical
College') is a private college established in the year 1920 and
goyerned by its Board of Trustees. On 30.12.1998 a decision
G in consultation with the Government of Kerala, was taken by the
management of the college to introduce the 'direct payment
system'. At that time there were only 31 teaching staff and 20 , .,.
non teaching staff. Consequent thereupon the management
appointed 45 no'n-teaching staff and 21 teaching staff by letter
H dated 2.1.1999. On 24.1.2000, an agreement was executed ...
STATE OF KERALA & ANR. V. 949
MAHESH KUMAR & ORS. [DR. MUKUNDAKAM SHARMA J.]

between the Government of Kerala and the Governing Body of A
the College for bringing the said college under the 'direct
payment system' w.e.f. 1.1.2000. It was decided that all the
members of the teaching staff who have not got themselves
registered under Rule 49 of the Travancore-Cochin Medical
Practitioners Rules (in short the 'Rules') cannot avail of the benefit B
of the 'direct payment system'. Rule 49 is extracted hereunder :
Rule 49 of the Travancore-Cochin Medical Practitioners
Rule
"49. Every person whose name has been entered in the c
Register shall be entitled to receive from the Registrar a
certificate of Registration. Such certificate shall set forth
the full name of the person registered, his designation, his
address, the date and place of registration and the
qualifications in respect of which he has been r~gistered. D
Such certificate shall be in Form I as laid down in Appendix
B."
4. G.O. (Ms) 511/95/H&FWD dated 10.11.1995 issued by
the Department of Health and Family Welfare, Government of
Kerala, provided that the system of direct payment will be E
introduced in the following three private Homoeopathic Colleges
in the State, subject to the conditions stipulated hereunder :
"1. Athurasramam Nair Service Society Homeopathic
Medtcal College, Kurichy, Kottayam
F
2~ Dr. Padiyar Memorial Homoeopathic Medical
College, Chottanikara.
3. Sir Vidadhiraja Homeopathic Medical College,
Nemom, Thiruvananthapuram
G
Conditions :
(a) Direct payment of salary will take effect from
01.11.1995
(b) All these private Homeopathic Colleges will enter H
950 SUPREME COURT REPORTS (2009] 2 S.C.R.

A into agreements with the Government to the effect
that in respect of appointments of Staff and enrollment >
of students, they will abide by terms and conditions
similar to those adopted in respect of private
Engineering Colleges in the State.
B
(c) Dr. Padiyar Memorial Homeopathic College will not
claim any Special rights of a Minority Institutions or
of a self-financing institution.
(d) Shree Vidyadhiraja Homeopathic College shall ...
c obtain recognition from University of Kerala as a
Precondition for implementation of the "direct
payment system""
5. The Government Order G.O.(MS).No. 100/2000ds)
H&FWD dated 25.4.2000 was issued regarding the introduction
D le
of 'direct payment system' with effect from 1.1.2000 which, inter ;
J.
alia, provided that 'direct payment system' can be introduced in
the Padiar Memorial Homeo College, allowing the management
to fill up 15% seat for BHMS as is being enjoyed by the NSS
Homeo College, Kurichy if they executed an agreement to this
E effect as provided in the conditions stipulated in the aforesaid
Government order dated 10.11.1995. This Government order
authorised the Senior Principal & Controlling Officer for
Homoeopathic Education to take necessary action for making
the staff fixation. Consequently, on 16.11.4001 he sent a list of i.
F 40 teaching and 50 non-teaching staff having qualification '
according to the government rules as on 1.1.2000 and
considering the department seniority for staff fixation. The
Government accepted and approved the said list as per
Government Order G.O. (MS) No. 99/02/ H&FWD dated '
~

G 25.4.2002 relevant portion of which is reproduced hereinbelow: l
"In the G.O. read above, direct payment system was
"
1'i
introduced in the Dr. Padiar Memorial Homoeopathic
Medical College, Chottanikkara, with effect from
"
01.01.2000, subject to the conditions set out in the
H agreement entered into between Government and the

¢
STATE OF KERALA & ANR. V. 951
MAHESH KUMAR & ORS. [DR. MUKUNDAKAM SHARMA, J.]

Management of the College. It was stipulated therein that A
' until fixation of staff strength and approval of salary are
done, members of the staff in the college will be paid pay
and allowances at the approval rate at which they were
drawing their pay for the month of December, 1999. ·
B
As per the agreement entered into between Government
and the amendment of the College on 24.01.2000,
Government are liable to disburse the pay and allowances
Tl
due to the staff of the college which accrue from 01.01.2000
directly through the Principal of the Institution based on
the existing staff pattern of the Government Homoeopathic C
Medical College and the hospitals attached therewith. As
per the direction of the High Court in the judgment dated
19.07.2001 in WA No. 2255/00 in OP No. 19111/00 filed
by Dr. Renjini N. Menon, final orders in the matter have to
be issued within the period of 3 months from the date of D
receipt of a copy of the judgment. Accordingly as directed
by the Government, the Principal and Controlling Officer,
Government Homoeo Medical College, Thiruvanantha-
puram, furnished the list of 40 senior most and qualified
teaching staff based on departmental seniority and 50 E
non-teaching staff of the Dr. Padiar Memorial Homoeo
Medical College as on 01 .01.2000 to be considered for
staff fixation.
Government have examined the matter in detail and are
pleased to approve the staff pattern consisting of 40 senior F
most and qualified teaching staff and 50 non-teaching
staff of Dr. Padiar Memorial Homoeopathic Medical
College, Chottanikara, as on 01.01.2000 as detailed in
Annexure I & II of this order. The Principal and Controlling
Officer, Government Homeo Medical College, G
Thiruvananthapuram will fix the pay and allowances of the
above staff due to their respective post with effect from
01.01.2000."
6. By the aforesaid Government order dated 25.4.2002 H
952 SUPREME COURT REPORTS [2009] 2 S.C.R. '.:f

A the Government had provided that 'direct payment system' would
~
be introduced in Padiar Medical College with effect from
1.1.2000. However, the entire staff belonging to the college
would not have come to be entitled to the benefit of direct
payment, since the staff pattern consisting of 40 senior most
B and qualified teaching staff and 50 non-teaching staff alone was
to be recognized as eligible for the said benefit. The resultant
position was that 8 persons (respondents herein), working as
,
..

faculty members i.e. teaching staff, were not to get recogni.tion ,.._

c
or payment. They challenged their exclusion from the list of
approved members of the teaching staff as on 1.1.2000 by
" . I

approaching the High Court complainir.ig that the Government
order dated 25.4.2002 ·subjected them to prejudice and
discrimination. The challenge was upheld and the appeals have J.-
been filed by the State Government.
D 7. The learned Single Judge of the High Court, by its order
dated 15.9.2004, allowed the petitions filed by the respondents
,.
and quashed the said government order dated 25.4.2002 to
the extent it has excluded the respondents from the list of
qualified teaching staff as on 1.1.2000 while including those
.E teachers who are juniors to the respondents and directed the
l
,;.l
Government of Kerala to include the respondents at the t ._
appropriate place in the list on the basis of their seniority thereby
I
entitling them for the salary in the pay scale made applicable 1-

under the 'direct payment system'. This order of the learned ).

F Single Judge was affirmed by the impugned judgment of the
High Court.
8. Being aggrieved by both the orders passed by the r
learned Single Judge as also the Division Bench of the Kerala I.-
High Court, the State of Kerala preferred the present appeals
G on which we have heard the learned counsel appearing for the
parties. 'I

9. The Government as per Government Order G.O. (MS)
No. 99/02/ H&FWD dated 25.4.2002 accepted and approved
" (

.r1
the staff fixation list sent by the Senior Principal & Controlling {
H
}----

t
STATE OF KERALA & ANR. V. 953
MAHESH KUMAR & ORS. [DR. MUKUNDAKAM SHARMA, J.]

Officer but while doing so it limited the number of teaching staff A
to 40 instead of 48 which comprises of the total number of·
teachers and thereby the balance 8 were ordered to be kept
out of the said benefit with the direction that they would not come
within the purview of "direct payment system". Therefore, the
;:..,,ue"'rtiaffalls~for-consideration in these appeals is whether the B
said remaining 8 respondents were qualified to get the said
benefit along with remaining 40 who have been granted such
benefit.
10. Mr. C.S. Rajan, learned senior counsel appearing for
the appellants submitted that the High Court failed to appreciate C
that the management made appointments by letter dated
2.1.1999 against Rules and also against the agreement which
was entered into by the Governing Body of the College
Management with the Government with regard to introducing
the 'direct payment system' as the Management did not take D
consent for the appointments made after the decision of the
Government to introduce 'direct payment system'. He also
submitted that none of the aforesaid remaining 8 respondents
have got their degrees registered under the Travancore-Cochin
Medical Council (hereinafter referred to as the 'Medical Council') E
as on 1.1.2000 which was an essential qualification and as such
they are disqualified for the post of tutor as on 1.1.2000 and
consequently they were not included in the list for 'direct payment
system'. He further submitted that as the said 8 respondents
were not having permanent registration under the Medical F
Council on the relevant date i.e. on 1.1.2000, they were not
entitled to be appointed as teaching staff in the college.
11. Mr. R. Rajendran Nair, learned counsel appearing for
the respondents, however, refuted the aforesaid allegations and
supported the judgments passed by both the learned Single G
Judge as also by the Division Bench of the High Court which
concluded that the respondents were fully qualified to be included
in the staff fixation list as on 1.1.2000. He submitted that Rule
49 of the Rules does not contemplate fresh registration on
.. acquiring additional qualification arid that the aforesaid 8 H
954 SUPREME COURT REPORTS [2009] 2 S.C.R

A respondents acquired registration under Travancore-Cochin
Medical Council in 1992 itself when they passed Diploma in
Homoeopathy. He further submitted that the said 8 respondents
also possessed Diploma in Homoeopathic Medicine and
Surgery which is a recognized medical qualifica]pn already
B included in the Second schedule and, theref-0re-;'theiT01t~::-:::~:..
initial registration with the Medical Councll is a valid one. ~""'"'
12. In the light of the aforesaid submissions we have .
carefully examined the records. As per G.O. (Ms.) No. 255/84/
HD dated 11.10.1984, the qualifications prescribed for the post
C of tutor in the Government Homeopathic Medical College are
as follows:
1. A Degree in Homoeopathy from a recognized
University in India or a recognized Hqmoeopathic
D Diploma with M.B.B.S. qualification or Dip. N.l.H.
awarded by the National Institute of Homoeopathy,
Calcutta.
2. Permanent Registration under the Medical Council".
13. The Central Council, of Homoeopathy (Minimum
E Standards of Education) Regulations, 1983 provides for a
minimum strength of teaching staff which was essential for a
college offering degree course. On the other hand, Rule 49 of
the Rules does not contemplate fresh registration on acquiring
additional qualification. The said rules were made in terms of
F . the rule making power as provided for in the Travancore-Cochin
Medical Practitioners Act, 1953 (for short the 'Act').
14. The Act of 1953 and the Rules made thereunder are
the State enactments governing the field of registration of
G Medical Practitioners in the State. There is a Central Act called
the Homoeopathy Central Council Act, 1973. Section 15 thereof
reads as follows:
"15. Rights of persons possessing qualifications
included in the second or the third schedule to be
H enrolled :
STATE OF KERALA & ANR. v.·. · 955
MAHESH KUMAR & ORS. [DR. MUKUNDAKAM SHARMA, J.]
---{ (1) Subject to the other provisions contained in this Act, A
"' any medical qualification included in the.. Second or the
Third Schedule shall be sufficient qualification for enrolment
on any State Register of Homoeopathy.

(2) No person, other than a practitioner of Homoeopathy
B
who possesses a recognized medical qualification and is
enrolled on a State Register or the Central Register of
Homoeopathy.
~

(a) Shall hold office as Homoeopathic physician or any
other office (by whatever designation called) in c
Government or in any institution maintained by a local or
other authority ;
(b) Shall practice Homoeopathy in any State ; ...... "
15. Section 23 of the Act prescribes the eligibility for D
registration. It stated thus:
"23. Eligibility for registration : (1) Subject to the
provisions of sub section (2) and (5) :-
i. Every holder of a recognized qualification and every E
practitioner holding appointment under the Government
at the commencement of this Act and

ii. Every person who, within the period of one year or such
other longer period as may be fixed by the Government
from the date on which this Act come into force, prove to F
the satisfaction of the appropriate council that he has been
in regular practice as a practitioner for a period of not less
than five years preceding the first day of April, 1953.
Shall be eligible for registration under this Act. G
Provided, however, that no practitioner shall be registered
under clause (ii) after the expiration of one year, or such
other longer period as may be fixed by the government,

" from the date on which this Act comes into force."
H
956 SUPREME COURT REPORTS [2009] 2 S.C.R.

A 16. Section 27 of the Act is also relevant and, therefore,
the said provision is also quoted below :
"27. Registration of additional qualifications.
(1) If any person whose name is entered in the Central
B Register of Homoeopathy obtain any title, diploma or other
qualification for proficiency in Homoeopathy, which is a
recognized medical qualification, he shall, on application
made in this behalf in the prescribed manner, be entitled
to have any entry stating such other title, diploma or other
c qualification made against his name in the Central Register
of Homoeopathy either in substitution for or in addition to
any entry previously made."
17. The Central Council of Homoeopathy (Minimum
Standards of Education) Regulations, 1983 prescribes the
D qualification for the post of Demonstrator/Tutor as under : f

"A. (i) A recognized diploma after 4 years study or a
degree in Homoeopathy.
OR
E
(ii) A degree in modern medicine.
;
Preferential qualification :
(A) Having both a recognized diploma or a degree .in ....

Homoeopathy and qualification included in the Ill Schedule
F of the Homoeopathy Central Council Act, 1973.
OR
M.D. or M.S. or Post Graduate diploma or Degree in the
subject concerned. ..
G
(B) Experience of working at any State Homoeopathic
Dispensary, Government Homoeopathic Dispensary at
any recognized Homoeopathic or Allopathic College and
Hospital."
,.
H 18. On a careful reading of the aforesaid provisions of the
-\ STATE OF KERALA & ANR. V. 957
MAHESH KUMAR & ORS. [DR. MUKUNDAKAM SHARMA, J.]

~
( ...;; statute it appears to us that every holder of recognized A
qualification is eligible for registration under the Medical Council.
The aforesaid remaining 8 respondents are also, therefore,
eligible to get the benefit of 'direct payment system'. The
registration granted by the Medical Council on the basis of
recognized qualification fully satisfied the qualification B
prescribed for the post of tutor, namely, permanent registration
under the Medical Council.
-oil
19. Be that as it may, without entering into the controversy
.,
raised by the parties hereto, when 40 teaching and 50 non-
teaching staff have been brought within the purview of the 'direct c
payment system' by the appellant, we see no justification as to
why only the remaining 8 persons should be deprived from
getting the same benefit. When the State Government has
accepted the responsibility with regard to the aforesaid 40
teaching and 50 non-teaching staff, the remaining 8 who are D
otherwise qualified and have the registration should not be
discriminated upon for we feel that they should also get the
similar benefits as are being given to other 40 persons.
20. Therefore, in the peculiar facts and circumstances of
E
this case, we direct that the aforesaid remaining 8 persons be·
also given the same benefit as has been given to 40 teaching
and 50 non-teaching staff and they shall be so accommodated
,. in terms of their seniority. We, however, make it clear that this
order is made in the peculiar facts and circumstances of this
case and would not, therefore, be treated as a precedent in any F
other matter.
21. Accordingly, these appeals are dismissed.

N.J. Appeals dismissed.
-;

I
-J