IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 16TH FEBRUARY 2009 / 27TH MAGHA 1930 WP(C).No. 8706 of 2007(J) ----------------------------------- PETITIONER: ------------------ SMT. M.P.LILLY, THEKKEDATH HOUSE, KOLAKKADU P.O., PERAVOOR, KANNUR. BY ADV. SRI.KRB.KAIMAL, SENIOR ADVOCATE SRI.ANIMON A. JOHN SRI.LAL GEORGE RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, LABOUR DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR, INSURANCE MEDICAL SERVICES, DIRECTORATE OF INSURANCE MEDICAL SERVICES, THYKKADU, THIRUVANANTHAPURAM. 3. REGIONAL DEPUTY DIRECTOR (NORTH ZONE), INSURANCE MEDICAL SERVICES, KOZHIKODE. 4. KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM. 5. DISTRICT PUBLIC SERVICE COMMISSION OFFICER, CIVIL LINES, KANNUR. ADV. SRI.ALEXANDER THOMAS,SC,KPSC FOR R4 & R5 GOVERNMENT PLEADER SMT. N. SUDHADEVI FOR R1 TO R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMACHANDRA MENON, J. ====================== W.P.(C) No. 8706 of 2007 ====================== Dated, this the 16th day of February, 2009 J U D G M E N T Non-reporting of the vacancy of Staff Nurse Grade II in Kannur District to the Kerala Public Service Commission, by the Department of Insurance Medical Services is the actual question involved in this writ petition. 2. Pursuant to the notification issued by the Kerala Public Service Commission for the selection and appointment of Staff Nurse in Kannur District, the petitioner participated in the process of selection and on coming successful, got included and placed at Sl.No.10 in Exhibit P1 rank list, which came into force on 18-10-2004 and was valid till 17-10-2007. Referring to Exhibit P2 Special Rules, it is contended by the petitioner that the post of Staff Nurse has to be filled up by direct recruitment; and that it is the feeder category for promotion to the next W.P.(C) No. 8706/2007 -:2:- higher post of Head Nurse, to be filled up in the ratio prescribed. It is further contended that only seven vacancies were reported and they were appointed pursuant to the advice given by PSC, whereas the persons who were promoted as Head Nurses were permitted to continue against the posts of Staff Nurse in Kannur District. As a result, at least six posts of Staff Nurse in Kannur District were not reported to the PSC so as to enable the PSC to advise candidates and fill up the vacancies from Exhibit P1 rank list. This is cited as an arbitrary exercise of power, particularly when the post of Head Nurse is having statewise seniority, while the post of Staff Nurse is having Districtwise seniority. Exhibits P3/P3(a) dated 21-6-2005 reveal that ten Staff Nurses were promoted as Head Nurses and were permitted to continue in Kannur District, whereas only five vacancies were actually existing in the said District. It is stated by the petitioner that, apart from this, another Head Nurse was transferred from Kasargod to Kannur District and was accommodated as a Staff Nurse, W.P.(C) No. 8706/2007 -:3:- thus resulting in deprivation of six vacancies available to the Staff Nurse denying the chances of those who were legitimately expecting advice and appointment from Exhibit P1 rank list. 3. While so, Exhibits P8 and P9 orders were passed by the second respondent, which have apparently resulted in excess promotion of Staff Nurse over and above the stipulated quota and subsequent reversion. The order of reversion was challenged by the aggrieved persons by filing W.P.(C) No.38310 of 2007 and connected cases, wherein specific direction was issued by this Court to re-consider the matter in the manner specified therein; which led to Exhibit P10 order passed by the second respondent on 19-8- 2008. As per Exhibit P10, the ratio was re-fixed between the Head Nurse and Staff Nurse as 1:2 (in place of 1:4) giving rise to wider avenues and vacancies for being promoted as Head Nurses and thus accommodating the Head Nurses who were promoted in excess of the ratio earlier. However, W.P.(C) No. 8706/2007 -:4:- the fact remains that the slots occupied by the Head Nurses in Kannur District, as pointed out by the petitioner, were more or less of the Staff Nurse aspirants who were waiting in the queue for advice from the PSC, based on their position in Exhibit P1 rank list. 4. As to non-reporting of the vacancies of Staff Nurses in Kannur District, it is pointed out that only one vacancy was actually available at that point of time. Second and third respondents have filed counter affidavit dated 7-9- 2007 trying to justify their stand in accommodating the promotee Head Nurses against the slots of Staff Nurses in Kannur District. However, it is stated that such exercise was pursued for the reason that the actual places of Head Nurses were not identified till date and the Staff Nurses on promotion as Head Nurses were allowed to continue in the same station on the presumption that the posts of Staff Nurse and Head Nurse were inter-changeable. It has been admitted that six Head Nurses were retained in Kannur W.P.(C) No. 8706/2007 -:5:- District in excess, based on the said presumption that the posts of Staff Nurse and Head Nurse were inter- changeable. But it is quite relevant to note the very same respondents in the fourth paragraph (unnumbered) of their counter affidavit have stated that the post of Head Nurse is supervisory nature, which obviously shows that the reasoning given is nothing but a paradox. In any view of the matter, the misconception or lack of knowledge or understanding of the concerned respondents cannot be a ground to deny the benefit, which otherwise would have been available to persons like the petitioner. 5. In the course of hearing, it has been fairly conceded by the learned Government Pleader, upon instructions, that the actual number of vacancies of Staff Nurses available in Kannur District, after Exhibit P10, is '7' (not '8') including the one vacancy, which has been referred to in the counter affidavit. It is also relevant to note that this Court on 1-10-2007 had passed an interim order directing W.P.(C) No. 8706/2007 -:6:- the concerned respondents to report '8' vacancies of Staff Nurse to the PSC; though consequential advice pursuant to the same is yet to be made. Based on the submission made by the learned Government Pleader, it has to be declared that the actual number of vacancies that could have been reported to the PSC is only '7' and not '8'. Taking note of the facts and circumstances, it is, therefore, made clear that the actual number of reportable vacancies should be confined to '7' alone. This means, out of the '8' vacancies ordered to be reported by virtue of the interim order of this Court, it could be easily said that '7' vacancies were validly reported and that the PSC could be directed to advise '7' candidates from Exhibit P1 rank list. 6. In the aforesaid circumstances, the fifth respondent is hereby directed to advise seven candidates in respect of the post of Staff Nurse from Exhibit P1 rank list pursuant to the vacancies already reported before the expiry of the rank list, as expeditiously as possible and at W.P.(C) No. 8706/2007 -:7:- any rate, within a period of three months from the date of receipt of a copy of this judgment. The second respondent will issue necessary orders of appointment within a period of one month thereafter. The writ petition is allowed as above. Parties shall bear their costs. P.R.RAMACHANDRA MENON, JUDGE. skr