Dismissed

The Kerala Government Homoeo Medical Officers Association v. State of Kerala

Kerala HC23 Oct 2020OP(KAT)/355/2020

Case brief

AI extract

What is this about?

The High Court dismissed the writ petition challenging the Kerala Administrative Tribunal's order affirming a Government order. The Court held that the refusal to grant Post Graduate allowance and create specialist posts for Homoeopathy doctors is a policy matter not open to judicial review, as no discrimination or arbitrariness was found.

What did the court decide?

The O.P (KAT) is fail and is accordingly dismissed.

The Kerala Government Homoeo Medical Officers… — Labour and Industrial Disputes | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

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THE HONOURABLE MR. JUSTICE GOPINATH P.

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FRIDAY, THE 23RD DAY OF OCTOBER 2020 / 1ST KARTHIKA, 1942

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OP(KAT).No.355 OF 2020

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AGAINST THE ORDER IN TA 2251/2012 DATED 07-01-2019 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM

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PETITIONERS/APPLICANT:

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1 THE KERALA GOVERNMENT HOMOEO

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MEDICAL OFFICERS ASSOCIATION REPRESENTED BY ITS PRESIDENT, DR.N.A NAZARULLA, CHIEF MEDICAL OFFICER, GOVERNMENT HOMOEO DISPENSARY, VELLANGALLOOR, THRISSUR DISTRICT, KERALA.

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2 DR. ROY ZACHARIAH RESIDENT MEDICAL OFFICER, DISTRICT HOMOEO HOSPITAL, KOTTAYAM, KERALA

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BY ADVS. SRI.ELVIN PETER P.J. SRI.K.R.GANESH SMT.T.S.LIKHITHA

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RESPONDENTS/RESPONDENTS:

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1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695001.

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2 THE DIRECTOR OF MOMOEOPATHY, DIRECTORATE OF HOMOEOPATHY, EAST FORT, THIRUVANANTHAPURAM-695001.

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OTHER PRESENT:

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SRI. P.N. SANTHOSH-SR. G.P.

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THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 23.10.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

OP (KAT) No.355/2020

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J U D G M E N T

DATED THIS THE 23^rd DAY OF OCTOBER, 2020

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Gopinath, J:

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This O.P (KAT) has been filed challenging order dated 07-01-2019 in T.A. No.2251/2012 on the file of the Kerala Administrative Tribunal. The petitioner, the Government Homoeo Medical Officers Association and another approached the Tribunal challenging Ext.P5 Government order dated 27-06-2009 through which a representation submitted by the 1^st petitioner Association was to grant Post Graduate allowance to medical officers in the Homoeopathy Department was rejected by the Government. The Tribunal on consideration of the matter found that Ext.P5 does not suffer from any unreasonableness or arbitrariness warranting interference with the same in exercise of the jurisdiction vested in the Tribunal.

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The learned counsel appearing for the petitioners would contend inter alia that the refusal of the Government to sanction Post Graduate allowance to Doctors in the Homoeopathy Department is arbitrary, unreasonable and in violation of the equality clause under Article 14 of the Constitution of India. He would point out that Doctors having Post Graduate qualification in the Indian Systems of Medicine (Ayurveda) and Doctors in the Allopathy wherein having Post Graduate qualification are given Post Graduate allowance and it is highly discriminatory to deny

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OP (KAT) No.355/2020

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the same to Doctors in the Homoeopathy wing. We have carefully gone through Ext.P5 order which was challenged before the Tribunal. The Government has elaborately considered the issue. It was found that in so far as the Indian Systems of Medicine are concerned a Post Graduate Degree is insisted in respect of the posts mentioned in Sl. Nos.(I) to (X) in paragraph 10 of the order. The Government has examined the categories of posts in the Homoeopathy Department and has specifically found that there is no specialists or Senior Medical Officer posts in the Homoeopathy Department as in the case of Indian Systems of Medicine. It is noted that the essential qualification prescribed for all categories of posts in the Homoeopathy Department is either a Degree or Diploma in Homoeopathy. This is in distinction to almost all categories of posts under Indian Systems of Medicines and Allopathy. It was further found that when compared to Indian Systems of Medicine there is no exclusive specialists in Homoeopathy and that most of the M.D. Courses in Homoeopathy are of academic nature. After noting the above it was held in Ext.P5 as follows:-

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“From the above it may be seen that Post Graduate Allowances is being given to Medical Officer and Senior Medical Officer (Specialist) in Indian Systems of Medicines as their Postgraduate Degree and specialization are in the exclusive field and they are directly beneficial to the people. In the case of Post Graduate Degree in Homoeopathy there is no exclusive Speciality and hence it cannot be said that their possession in MD in Materia Medica or Repertory

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OP (KAT) No.355/2020

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or Phiolosophy or Pharmacy is explicitly useful in treating the patient. Since there is no exclusive specialization in Homoeopathy, there is no point in creating a post of Senior Medical Officer (Specialist) in the Department of Homoeopathy.

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Thus the structure, constitution, health care delivery system and specialization in the branches of Indian System of Medicine and Homoeopathy are entirely different and as such the Medical Officers of both the Department are not similarly placed.”

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We are of the opinion that the competent authority has elaborately considered the issue raised by the petitioners. As rightly held by the Tribunal that it does not fall within the realm of judicial review to examine a question as to whether there should be creation of posts for those holding Post Graduate Degree in Homoeopathy or whether the Government should allow Post Graduate allowance for Doctors in the Homoeopathy Department. These are essentially of matters of policy where Court or Tribunal will interfere only if the decision taken is grossly arbitrary or discriminatory or otherwise in violation of law. We are unable to find any such infirmity in Ext.P5. All relevant considerations have been taken into account and a decision has been taken as to why Post Graduate allowance cannot be permitted to Doctors in the Homoeopathy Department and also as to why no posts can be created specially for Doctors holding Post Graduate Degree in Homoeopathy. We do not find any jurisdictional infirmity in the view taken by the Tribunal. The order calls for no

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OP (KAT) No.355/2020

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interference in exercise of jurisdiction vested under Article 227 of the Constitution of India.

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The O.P (KAT) is fail and is accordingly dismissed.

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(Sd/-)

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A.M. SHAFFIQUE, JUDGE.

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(Sd/-)

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GOPINATH P., JUDGE.

AMG

OP (KAT) No.355/2020

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APPENDIX

PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE TA NO.2251/2012 IN WRIT PETITIONER(CIVIL) NO.7699/2010 DATED 06.03.2010 FILED BY THE 1ST PETITIONER ASSOCIATION BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL,THIRUVANANTHAPURAM.

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EXHIBIT P1(A1) TRUE COPY OF THE GOVERNMENT ORDER GO(MS) NO.244/07/(57)/FIN DATED 13.06.2007. EXHIBIT P1(A2) TRUE COPY OF THE REPRESENTATION DATED 11.12.2006 SUBMITTED BY THE 1ST PETITIONER ASSOCIATION BEFORE THE GOVERNMENT. EXHIBIT P1(A3) TRUE COPY OF THE REPRESENTATION DATED 23.07.2007 SUBMITTED BY THE 1ST PETITIONER ASSOCIATION BEFORE THE GOVERNMENT, EXHIBIT P1(A4) TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WP(C) NO. 32703/2008 DATED 17.11.2008. EXHIBIT P1(A5) TRUE COPY OF THE GOVERNMENT ORDER GO(RT) NO.1811/2009/H AND FWD DATED 27.06.2009. EXHIBIT P2 TRUE COPY OF THE ORDER DATED 07.01.2019 PASSED BY THE KERALA ADMINISTRATIVE TRIBUNAL, TRIVANDRUM IN TA NO.2251/2012.

The Kerala Government Homoeo Medical Officers Association v. State of Kerala

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The Kerala Government Homoeo Medical Officers Association v. State of Kerala

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