IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 27TH MAY 2010 / 6TH JYAISHTA 1932 WP(C).No. 8858 of 2010(F) -------------------------------------- PETITIONER(S): ----------------------- 1. DIFFNA HENRY, W/O.JOJAN M.GEORGE, AGED 30 YEARS, RESIDING AT VEERATH HOUSE, NEHRU ROAD, AYYAPPANKAVU, KOCHI-18. 2. MARY GEEMA. P.L., W/O.MARSHALL. A.C., AGED 31 YEARS, RESIDING AT ARACKAL HOUSE, MOOLANKUZHY, MUNDAMVELI P.O., ERNAKULAM. 3. SHAHITHA. K.G., W/O.SANI P.G., AGED 31 YEARS, NOW RESIDING AT PANIKKASSERY HOUSE, PUTHENVELIKKARA P.O., ERNAKULAM. 4. KUNJUMOL. M.K., W/O.SHYJAN P.PAUL, AGED 35 YEARS, RESIDING AT PANAYIL HOUSE, AKAPPARAMBU, MEKKADU P.O., ANGAMALY, ERNAKULAM DISTRICT. 5. BRIGITE. P.X., W/O.THOMAS KURIAN. C.J., AGED 31 YEARS, RESIDING AT CHOOTHAMPARAMBIL HOUSE, MUNDAMVELI P.O., KOCHI, ERNAKULAM. 6. SONIA JOHN, W/O.LIJO K.JOSEPH, AGED 33 YEARS, KAVATTU HOUSE, ARIKUZHA P.O., THODUPUZHA, IDUKKI DISTRICT. 7. SHEMY ABDUL JALEEL, W/O.ABDUL JALEEL, AGED 31 YEARS, RESIDING AT THONDIEECKAL HOUSE, NELLIKUZHI P.O., KOTHAMANGALAM. BY ADV. SRI.K.GOPALAKRISHNA KURUP RESPONDENT(S): -------------------------- 1. THE STATE OF KERALA, REP.BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF HEALTH AND FAMILY WELFARE, SECRETARIAT, THIRUVANANTHAPURAM. WP(C).No. 8858 of 2010(F) 2. THE DIRECTOR OF HEALTH SERVICES, THIRUVANANTHAPURAM. 3. THE DISTRICT MEDICAL OFFICER, KOTTAYAM, OFFICE OF THE DISTRICT MEDICAL OFFICER, COLLECTORATE P.O., KOTTAYAM. 4. THE DISTRICT MEDICAL OFFICER, ERNAKULAM. 5. THE KERALA PUBLIC SERVICE COMMISSION, REP.BY ITS SECRETARY, PATTAM, THIRUVANANTHAPURAM. R1 TO R4 BY GOVT. PLEADER MR.ANTONY MUKKATH. R5 BY ADV. MR.ALEXANDER THOMAS, SC, KPSC. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27/05/2010, ALONG WITH WP(C) NO. 9130 OF 2010 AND WP(C) NO. 10482 OF 2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. ANTONY DOMINIC, J. ------------------------- W.P.(C.) Nos.8858 (F), 9130 (M) & 10482 (I) of 2010 --------------------------------- Dated, this the 27th day of May, 2010 J U D G M E N T Issues raised are connected and therefore, these cases were heard together and are disposed of by this common judgment. 2. First, I shall deal with WP(C) Nos.9130 & 10482/2010. 3. The petitioners in these two writ petitions are Staff Nurses now working at various Primary Health Centres in Kottayam district. On abolition of the dual control system, the petitioners did not opt for continuing under the Directorate of Medical Eduction. Therefore, they were relieved from the Medical College and were transferred to the Directorate of Health Services. 4. Among the petitioners in WP(C) No.9130/2010, petitioner Nos.4, 8, 14, 15, 18, 22, 24, 26, 28, 29 & 30 opted later for transfer to other districts. During the pendency of the writ petition, they have been transferred and therefore, with the transfer thus given, their grievances stand redressed and no further order is warranted in so far as these petitioners are concerned. WP(C) Nos.8858, 9130 & 10482/2010 -2- 5. As far as the remaining 20 petitioners in WP(C) No.9130/2010 and all the petitioners in WP(C) No.10482/2010 are concerned, they did not opt for transfer to other districts. However, they apprehended that overlooking their seniority in the district and retaining their juniors, they are likely to be transferred out. It was on this basis, they approached this Court by filing these writ petitions. 6. At the stage of admission, this Court passed order directing that the petitioners should not be relieved, and on that basis they are continuing in the Primary Health Centres in the Kottayam district. However, the Government sought variation of this order complaining that in view of the order directing them to maintain status quo, even the petitioners, who had opted for transfer to other Districts, could not be transferred. Accordingly parties were heard and this Court passed order dated 05/04/2010 enabling the Government to effect transfer in the manner as directed in the said order. Insofar as those who did not opt for transfer are concerned, it was directed that the issue of their transfer should be decided strictly in accordance with the norms for transfer and postings. WP(C) Nos.8858, 9130 & 10482/2010 -3- 7. Even thereafter, as the aforesaid 20 petitioners and the petitioners in WP(C) No.10482/2010 did not want to be transferred out, they did not exercise any option of transfer as mentioned in the aforesaid order dated 05/04/2010 of this Court. However, stating that the aforesaid petitioners did not exercise any option as ordered by this Court in the order dated 05/04/2010, the Director of Health Services issued order dated 21/04/2010 transferring them to other districts. That order was produced as Ext.P11 and stay of the said order was sought in I.A.No.5852/2010. This I.A. was heard and by order dated 04/05/2010 this Court directed that the petitioners shall not be relieved from the respective places. 8. The petitioners now contend that under the interim order dated 05/04/2010, those who did not want to be transferred out were not required to exercise any option and it was therefore that they did not exercise any option. It is stated that this reason stated in Ext.P11 for transferring the petitioners is therefore misconceived and is illegal. That apart, referring to Ext.P13, the information obtained under the Right to Information Act, it is contended that about 100 persons, who are juniors to them, are still retained in Kottayam District. Thus, it is argued that by any standards, if at all WP(C) Nos.8858, 9130 & 10482/2010 -4- transfer outside the district is necessitated, juniors should have been preferred to seniors like them. 9. On the other hand, the learned Government Pleader submits that when 50 staff nurses including the petitioners were repatriated to the Directorate of Health Services, they were rendered surplus in Kottayam district. It is stated that to accommodate the petitioners, norms regarding inter district transfer were got relaxed by Ext.R2(a) order and it was thereafter that Ext.P11 order was issued transferring the petitioners. 10. Irrespective of the contentions, if as stated by the petitioners, they have service seniority within the district, their claim for retaining in the district deserves to be considered. In this matter, the Directorate of Health Services has already taken its view as reflected in Ext.P11, and therefore, I do not think it appropriate to direct the same authority to consider the matter. This is for the further reason that Ext.R2(a) order relaxing the norms of inter district transfer was issued by the Government. 11. Therefore, I direct that such of those petitioners in these two writ petitions, who did not want to be transferred out from Kottayam district, shall file appropriate applications before the 1st WP(C) Nos.8858, 9130 & 10482/2010 -5- respondent. It is directed that if such representations are filed within two weeks from today along with a copy of this judgment, the 1st respondent shall consider the requests made for retaining them in Kottayam District in the light of the observations made hereinabove and orders thereon shall be passed as expeditiously as possible, at any rate, within six weeks thereafter. 12. It is directed that in the meanwhile, the order dated 04/05/2010 directing that the petitioners shall not be relieved in pursuance to Ext.P11 order referred to above shall remain in force. 13. In so far as the petitioners in WP(C) No.8858/2010 are concerned, they are also working as Staff Nurses, who also along with the petitioners in WP(C) Nos.9130 & 10482/2010 were relieved from the Medical College and were repatriated to the Directorate of Health Services. However, for the reason that they are natives of Ernakulam district, they opted for transfer to Ernakulam District pursuant to Ext.R2(a) mentioned above. Accordingly, their requests for transfer were allowed and they all have been transferred to Ernakulam District, where they have all joined. 14. They say that irrespective of the decision to be taken by the Government pursuant to the directions concerning the WP(C) Nos.8858, 9130 & 10482/2010 -6- petitioners in WP(C) No.9130/2010 & 10482/2010, having regard to the fact that they have opted for transfer, which is already allowed, they shall not be disturbed from the places where they are now posted. In view of the facts as stated above, I see no reason to decline their request. Therefore, it is clarified that while carrying out the directions of this Court in the aforesaid two writ petitions, namely, WP(C) Nos.9130 & 10482/2010, the postings already given to the petitioners in WP(C) No.8858/2010 shall not be disturbed. In so far as the common grievance of the petitioners that they have not been disbursed salary since October, 2009 is concerned, learned Government Pleader points out that by Ext.R2(c), GO(Rt.) No.1863/2010/H&FWD dated 05/05/2010, the Government has already issued directions for disbursement of the salary. However, it is pointed out by the learned counsel for the petitioners in WP(C) Nos.9130 & 10482/2010 there is a condition in Ext.R2(c) that the petitioners should join at the respective places mentioned in Ext.P11 referred to above, for receipt of their salary. Now that this Court hs directed consideration of their claims as above, it is clarified that the said condition in Ext.R2(c) shall not stand in the way of the petitioners in WP(C) Nos.9130 & 10482/2010 for receiving their WP(C) Nos.8858, 9130 & 10482/2010 -7- salary due, including arrears, if any. It is directed that emoluments due to the petitioners shall be disbursed as expeditiously as possible, at any rate, within one month from the date of receipt of a copy of this judgment. These writ petitions are disposed of as above. (ANTONY DOMINIC, JUDGE) jg