IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 4TH FEBRUARY 2009 / 15TH MAGHA 1930 WP(C).No. 1932 of 2005(E) PETITIONER(S): T.NIRMALA, W/O.P.S.GOPALAKRISHNAN, AGED 46 YEARS, STAFF NURSE GRADE I, GURUVAYUR DEVASWOM MEDICAL CENTRE, GURUVAYUR DEVASWOM, GURUVAYUR. BY ADV. SRI.V.A.MUHAMMED SRI.K.E.HAMZA RESPONDENT(S): 1. THE COMMISSIONER, O/O.THE COMMISSIONER FOR GURUVAYUR DEVASWOM, TRIVANDRUM. 2. THE ADMINISTRATOR, GURUVAYUR DEVASWOM, GURUVAYUR. 3. THE MEDICAL SUPERINTENDENT GURUVAYUR DEVASWOM MEDICAL CENTRE, GURUVAYUR, THRISSUR DISTRICT. 4. MRS. LINDA K.K., HEAD NURSE, DO. DO. 5. MRS. JULA BHAI, HEAD NURSE, DO. DO. 6. MRS. SHEELA P.P., STAFF NURSE GR. I, DO. DO. 7. MRS. RADHA. T, STAFF NURSE GR. I, DO. DO. 8. MRS. SUJATHA T.K., STAFF NURSE GR. I, DO. DO. 9. MRS. JAYAMBIKA, STAFF NURSE GR. I, DO. DO. ADD. R4 TO R9 IMPLEADED AS PER ORDER DT. 21.3.2007 IN I.A.NO. 14971/06. ADV. SRI.P.N.RAVEENDRAN, SC, GDB FOR R2 & 3 SRI.M.RAMESH CHANDER, SC, GDB FOR R2 SRI.MILLU DANDAPANI FOR R4-7,9 SRI.P.NANDAKUMAR,SC,GURUVAYUR D BOARD FOR R2 & R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/02/2009, THE COURT ON THE SAME DAY, DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: W.P.C.NO.1932/2005. ------------------------------------------------------------------ EXT.P1 TRUE COPY OF PROCEEDINGS DT. 7-7-1987. EXT.P2 ORDER DT. 1-2-2002. EXT.P3 REPRESENTATION DT. 8-7-2002. EXT.P4 JUDGMENT IN O.P.NO. 28344/2002. EXT.P5 HEARING NOTE DT. 22-11-2002. EXT.P6 PROCEEDINGS DT. 15-1-2003. EXT.P7 REVIEW PETITION DT. 28-1-2003. EXT.P8 ORDER DT. 18-12-2004. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) No. 1932 of 2005 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 4th February, 2009. J U D G M E N T The petitioner is a Staff Nurse in the Guruvayoor Devaswom Board Medical Centre. The Medical Centre was only a dispensary in 1964 with one Medical Officer and one Nurse. A second post of Nurse was sanctioned in 1981. A third one was sanctioned in 1982. To that post, the petitioner was appointed on 1-10-1982. In 1987, six more posts of the Staff Nurses were sanctioned by Ext. P1 order. Altogether, there were nine posts of Staff Nurses. In the meanwhile, Government issued the 1983 Pay Revision Order, in which the proportion between the Head Nurse and and Staff Nurse was fixed as 1:2. In 1987 pay revision also, the same ratio was continued. According to the petitioner, since the Devaswom Board had adopted the Pay Revision Orders of the Government for the Medical Centre, the ratio between Head Nurse and Staff Nurse in the Guruvayur Medical Centre should have been 3:6. But, only two persons were appointed as Head Nurses, whereas three ought to have been filled up in accordance with the ratio prescribed by the Pay Revision Orders, is the submission made by the petitioner. According to the petitioner, although the petitioner was eligible to be promoted as a Head Nurse, she was not given the due promotion. The petitioner went on leave without allowance for the period from 5/1991 to 21-6-1997. While she was on leave without allowance, three of her juniors were promoted as Head Nurses. According to the petitioner, had the ratio been properly applied, the petitioner would have been promoted prior to her entering on leave without allowances. Three juniors were promoted as Head Nurses on 24-8-1992, 15-4-1993 and 1-6-1997. Subsequently, the petitioner was also promoted on 1-1-1998. 2. In the meanwhile, Pratapan Commission Report was implemented fixing a ratio of 1:2:2 among Head Nurse, Staff Nurse W.P.C. No. 1932/2005 -: 2 :- Grade I and Staff Nurse Grade II. In view of that ratio, the petitioner was reverted as Staff Nurse Grade I. The petitioner filed Ext. P3 representation contending that had the petitioner been given her due promotion prior to her entering on long leave, she would not have been the one to be reverted. She filed O.P.No. 28344/2002 in which, by Ext. P4 judgment, Ext. P3 representation was directed to be disposed of. By Ext. P6, the Guruvayur Devaswom Commissioner rejected the claim of the petitioner as unsustainable. The petitioner challenged the same in a review, which was also dismissed by Ext. P8 order by the Devaswom Commissioner. The petitioner is challenging Exts. P6 and P8 orders seeking the following reliefs: “(a) Call for the records relating to Exhibits P2, P6 and P8 and quash the originals of the same by the issue of a writ of certiorari or other appropriate writ or order. (b) issue a writ of mandamus or other appropriate writ, order or direction commanding the respondents to promote the petitioner notionally as Head Nurse from 7-7-1987 applying 1:2 ratio between Head Nurse and Staff Nurse with attendant benefits. (c) direct the 1st respondent to give all benefits flowing from 1983 Pay Revision including ratio promotion between Head Nurse and Staff Nurse in Guruvayur Devaswom Medical Centre with effect from the date applicable to Health Services Nurses also.” 3. I have heard counsel for the petitioner, counsel for the Guruvayoor Devaswom and counsel appearing for additional respondents 4 to 7 and 9. I have considered the rival contentions in detail. 4. In Ext. P6, the reasoning for rejecting the petitioner's claim was given as follows: “The pay revision order issued by Government is not automatically applicable to the Guruvayoor Devaswom as Commissioner accords sanction. The argument that the posts of Head Nurse should W.P.C. No. 1932/2005 -: 3 :- have been created when the Commissioner sanctioned 6 posts of Staff Nurse, has no justification. Posts are created only when they are sanctioned by the Guruvayoor Devaswom Commissioner. The Commissioner had created only one post of Head Nurse in 1990. Though it has been stated in the proceedings that the post is sanctioned at 1:2 ratio, the post sanctioned was only one. The Commissioner had done this fully knowing the issue and taking into consideration the functioning of the Medical Centre and the requirement. The Devaswom had also not putforth any request for sanctioning additional posts of Head Nurses. This may be due to the fact that the staff of the Medical Centre was more than enough and the Committee was fully aware of the huge expenditure incurred on account of the Medical Centre. The contention that the Medical Centre is entitled to 3 posts of Head Nurse in 1987 cannot be accepted. Posts are not automatically created in the Medical Centre. Posts become available only if the Commissioner sanctions the same. Here, only one post was sanctioned in 1990 and Smt. Santhakumari was promoted as Head nurse. Later, when the promotion to the then available posts of Head Nurse was effected, Smt. Nirmala was on leave for taking up employment abroad. As per the rules in force, such leave period will not be reckoned for any service benefits. Hence, during the leave period of Smt. Nirmala, when promotions to the posts of Head nurse were effected, the seniormost persons available in service were promoted. Had Smt. Nirmala been in service on that date (instead of on leave in abroad) she would have been promoted to the post of Head Nurse before Smt. K.K. Linda was promoted. Smt. Nirmala cannot stake a claim for a post which was not there on 7.7.87 as the same had not been sanctioned by the Commissioner. In view of the above facts Smt. Nirmala's request cannot be considered and the same is therefore rejected.” It is not disputed before me that pay revision orders issued by the Government are not automatically applicable to the Guruvayoor Devaswom Board as such. Guruvayoor Devaswom Board adopts the principles of pay revision for its establishment. That being so, simply because in pay revision orders, a ratio has been prescribed that ratio would not automatically apply to the Devaswom Board Medical Centre, unless the Devaswom Commissioner adopts that ratio and sanctions posts accordingly. The petitioner has also not been able to show me the orders by which the pay revision orders have been adopted by the Devaswom. In the absence of the same, when the W.P.C. No. 1932/2005 -: 4 :- Devaswom Commissioner himself states that he had created only posts required for the Guruvayoor Devaswom Medical Centre, this Court cannot direct the Guruvayoor Devaswom to create posts in accordance with the the ratio prescribed in the Pay Revision Order and promote persons accordingly. Here, the Commissioner has stated that the post was not sanctioned to which the petitioner claims that she could have been accommodated. That being so, relying on the Pay Revision Order, the petitioner cannot, as of right, claim that a post should have been created in accordance with the ratio and the petitioner promoted to that post. In the above circumstances I do not find any merit in the writ petition. Accordingly, the same is dismissed. Sd/- S. Siri Jagan, Judge. Tds/