IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 5TH AUGUST 2009 / 14TH SRAVANA 1931 WA.No. 1394 of 2009() --------------------- AGAINST THE JUDGMENT IN W.P.(C) NO.20972/2008 ------------------------------ APPELLANT/ 4TH RESPONDENT ---------------------------- DR.A.SAPHARULLAKHAN, ASSISTANT SURGEON AND PAEDIATRICIAN, GOVERNMENT TALUK HEADQUARTERS HOSPITAL, KARUNAGAPPALLY, KOLLAM DISTRICT. BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA SRI.K.A.BALAN SRI.PETER JOSE CHRISTO SRI.ANAND S.A. RESPONDENTS/ PETITIONER & R1 TO 3 & 5 TO 7 ------------------------- 1. DR.PADMAKUMAR.K.G., CIVIL SURGEON, PAEDIATRICIAN, GOVERNMENT TALUK HOSPITAL, KARUNAGAPPALLY, KOLLAM. 2. STATE OF KERALA, REPRESENTED BY ITS PRINCIPAL SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 3. THE DIRECTOR OF HEALTH SERVICES, THIRUVANANTHAPURAM. 4. THE SUPERINTENDENT, GOVERNMENT TALUK HOSPITAL, KARUNAGAPPALLY. 5. KERALA GOVERNMENT MEDICAL OFFICERS ASSOCIATION, THIRUVANANTHAPURAM. 6. KERALA GOVERNMENT OFFICERS ASSOCIATION, THIRUVANANTHAPURAM. 7. DENTAL SURGEON ASSOCIATION, KOTTAYAM. ADV. SMT.S.KARTHIKA FOR R1 SRI.SAJEEV KUMAR K GOPAL FOR R5 SRI.VIJAYAN K.U. FOR R6 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 05/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. ------------------------------ W.A. No.1394 of 2009 ------------------------------ Dated this, the 5th day of August, 2009 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. The appellant herein was the 4th respondent in the Writ Petition, which was filed challenging Ext.P7 order of the Government. As per that order, the Government issued certain modified guidelines in the place of existing guidelines concerning the manning of casualty wing of the Government hospitals and also about the conduct of postmortem examination. The relevant portion of the said order reads as follows: “5. Government have examined the matter in detail and are pleased to modify Para IV of the G.O.(Rt)No.4577/94/H&FWD dated 14.12.1994 as given below with immediate effect and order accordingly. W.A. No.1394/2009 2 Existing Guidelines Modified Guidelines IV. Taluk Hospital and Hospitals with more than 11 Medical Officers. All the Medical Officers of less than 20 years' of service or below 50 years of age except the superintendent will take turn duty of 12 hours duration shift. If the number of such medical officers are less than 7 the Junior among those above 20 years' service will be posted for turn duty. All except superintendent and Deputy Superintendent shall conduct P.M. examination on turn. IV. a) Taluk Hospitals and (b) Hospitals having more than 11 Medical Officers. If such hospitals have a casualty unit, 24 hours casualty service should be maintained with 4 doctors posted for casualty duty. If sufficient number of Casualty Medical Officers are not available due to vacancy or leave, the doctors from general pool shall also be posted for casualty duty by rotation/turn. All the Medical Officers having less than 20 years' of service or below 50 years of age (except the Superintendent) shall take turn duty of 12 hours duration. All except Superintendent and Deputy Superintendent shall conduct P.M. examination on turn. 6) The representation read as 2 nd paper above is disposed of as above and the direction of the Hon'ble High Court contained in the judgment read as 1 st paper above is complied with accordingly.” The 1st respondent/writ petitioner challenged the above order, apparently, for the reason that it went against the interest of senior Doctors in service. The learned Single W.A. No.1394/2009 3 Judge, after hearing both sides, issued the following directions: “14. For the present, I am satisfied that there is no reason warranting interference with Ext.P7. But, it is only appropriate that doctors who have comparative seniority in service are not burdened with posting in casualty department as frequently as persons who have lesser years of service. It cannot be said that seniority in service should not carry with it any privileges whatsoever. Moreover, the senior amongst the doctors from the general pool could possibly be called upon in emergency cases even when it is not their turn as such. Accordingly, the writ petition is disposed of directing the Government to see that the Director of Health Services implements a roster by which the doctors, who are comprehended by the amended guidelines, are posted for casualty duty, but in doing so, senior amongst the doctors should not be subjected to as frequent turns in the Casualty Department as the other junior doctors. In other words, a graded system should be brought into force. This shall be done within three months from the date of receipt of a copy of this judgment. Subject to the above, the Government is permitted to implement the amended guidelines.” W.A. No.1394/2009 4 2. Feeling aggrieved by the said direction, this Writ Appeal is filed by the 4th respondent in the Writ Petition. On the basis of the direction obtained by the appellant from this Court to consider his representation, Ext.P7 order was passed. That is the reason, why the appellant was impleaded in the Writ Petition. 3. We heard Sri.S.P.Aravindakshan Pillai, learned counsel for the appellant, and Smt. V.P.Seemandini, learned senior counsel for the 1st respondent/writ petitioner. How the doctors in a hospital should be deployed to man various units in it, is essentially an executive function, which has to be considered and decided by the competent authority concerned. By making such arrangements or rearrangements in public interest, nobody's rights or legally protected interest are affected. Therefore, the doctors whether seniors or juniors have no legal right to maintain a Writ Petition against an order in the nature of Ext.P7. Even assuming, the said order is causing some inconvenience to somebody, the remedy of the persons concerned is to move the authority, which passed the order. In the absence of any legal right in the petitioner and a corresponding duty in the official respondents, this Court cannot interfere with the matter W.A. No.1394/2009 5 under Article 226 of the Constitution of India. Those, who are answerable to the legislature and the people, only can take decisions in matters of this nature. Their decisions may not be right or even foolish in the eyes of the Court, but this Court can correct a decision, only if it is contrary to law or taken without jurisdiction. We notice that none of this jurisdictional preconditions is available in this case for the invocation of the jurisdiction of this Court. The remedy of the petitioner, if he is aggrieved by Ext.P7, is not before this Court but some other forum. In view of the above position, the Writ Petition was not maintainable. The learned Single Judge was not justified in making any direction tinkering with the arrangement made by the Government regarding the manning of the hospitals under it. Accordingly, the Writ Appeal is allowed, the judgment under appeal is reversed and the Writ Petition is dismissed. (K. BALAKRISHNAN NAIR, JUDGE) (C.T.RAVIKUMAR,JUDGE) ps