IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI MONDAY, THE 30TH JUNE 2008 / 9TH ASHADHA 1930 WP(C).No. 15875 of 2008(M) -------------------------------------- PETITIONERS : -------------------- 1. SMITHA VALIYAPARAMBATH, D/O.RAGHOOTY, VALIYAPARAMBATH HOUSE, NEW STREET, VATAKARA, KOZHIKODE DISTRICT. 2. RAGI.K.K., W/O.VINOD, `VARADAM', VELLIYARAKANDY HOUSE, NOCHAD P.O., NADAVANNOOR VIA, KOZHIKODE DIST. 3. BABY PREETHA, PERUMPARA GARDENS, CMC 20, CHERTHALA P.O., ALAPPUZHA DISTRICT. 4. RENJINI UNNIKRISHNAN, W/O.HARI NAMBIAR.K.K., SOPANAM, CHOWARA P.O., EDANADU, ERNAKULAM DIST. BY ADV. SRI.KALEESWARAM RAJ RESPONDENTS : ---------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF HEALTH & FAMILY WELFARE, SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF HEATLH SERVICES, THIRUVANANTHAPURAM. 3. DISTRICT MEDICAL OFFICER, KOZHIKODE. 4. KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY THE SECRETARY, KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM. WP(C).No. 15875 of 2008(M) 5. THE DISTRICT OFFICER, KERALA PUBLIC SERVICE COMMISSION, KOZHIKODE. BY GOVERNMENT PLEADER SMT.M.R.SREELATHA SRI.ALEXANDER THOMAS, SC SRI.M.AJAY, SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30/06/2008 ALONG WITH WP(C) 19256/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING : V.GIRI,J. ------------------------- W.P ( C) Nos.15875 and 19256 of 2008 -------------------------- Dated this the 30th June, 2008 JUDGMENT Common issues arise for consideration in these writ petitions which have been heard together and therefore they are being disposed of by a common judgment. Petitioners in W.P (C) No.15875 of 2008 are included in the rank list published by the Public Service Commission for the post of Staff Nurse. According to them, there are several vacancies in the post of Staff Nurse which are to be reported to the Public Service Commission. Details of the same are given in page 9 of the writ petition. According to the petitioners, including retirement vacancies there are number of vacancies to be filled up by candidates selected by the Public Service Commission. There are 420 vacancies as such. Those vacancies are not reported to the PSC in spite of the existence of a valid rank list. W.P. (C) Nos.15875 and 19256 of 2008 2 2. Learned counsel for the petitioner submits that there are other short vacancies also which are eligible to be reported to the Public Service Commission. 3. A statement has been filed on behalf of the respondents. It is stated therein that total number of vacancies of Staff Nurse Gr.II and I sanctioned in the District are as follows: Staff Nurse Gr.II : 449 posts Staff Nurse Gr.I : 447 posts Rank list came into force on 21.8.2007. Since October 2007 till 31.5.2008, 176 candidates were advised and all were given appointment. Thirteen posts are lying vacant among which 10 vacancies are reserved for inter district transfer, extension of joining time and three vacancies are now remaining. These three vacancies will be filled up immediately through Public Service Commission. In paragraph 4 of the statement. it is stated that the requirement of Staff Nurses for 740 beds is only 123 and not 137. That against the 123 admissible posts, 137 persons are sanctioned considering the case of causalities W.P. (C) Nos.15875 and 19256 of 2008 3 and others. In the Medical College Hospital, Calicut, the bed strength is 1510 with a capacity of 317 nurses against the 252 required. 3. The controversy ultimately seems to be the engagement of Staff Nurses and Junior Public Health Inspectors by the National Rural Health Mission. Copies of orders of appointment issued by the District Programme Manager of Arogyakeralam (NRHM) Kozhikode have been placed on record along with I.A. No.8241 of 2008. 4. In these circumstances, I requested the counsel for the National Rural Health Mission Sri.M.Ajay to get instructions both in relation to the post of Staff Nurse in Kozhikode District, forming the subject matter of W.P (C) No.15875 of 2008 and Junior Public Health Inspector Gr.II in Kasargod district forming the subject matter of W.P (C ) No.19256 of 2008. 5. Sri. M.Ajay, learned standing counsel for the National Rural Health Mission submits that it is true that Staff Nurses and Junior Public Health Inspectors Gr.II have been engaged by the National Rural Health Mission as part W.P. (C) Nos.15875 and 19256 of 2008 4 of the implementation of the programme “Arogyakeralam”. Funds are deployed by the National Rural Health Mission supplementing the health services in the State. But they stand outside the administration of the Health Services Department and they do not propose to fill up the vacancies in different posts in the Health Services Department. Appointments effected by the National Rural Health Mission is on a purely temporary basis on a consolidated pay per month. Appointment being effected under National Rural Health Mission will not in any way confer any right for absorption or employment under the Government. In other words, engagement by the National Rural Health Mission will not under any circumstances be treated as an alternate route for ultimate employment in public services in the State. This submission is recorded. 6. Once this aspect is made clear, I do not think that petitioners can have any real grievance as such. Learned counsel for the petitioners in W.PC No.15875 of 2008 submits that administration of the Health Services in the State is an exclusive State subject and the National W.P. (C) Nos.15875 and 19256 of 2008 5 Rural Health Mission which has been brought into existence by the Central Government should not be permitted to act as a supplemental agency for the State. In my view, what the National Rural Health Mission currently does is to deploy its resources to fulfill the requirements which are felt in different parts of the country with emphasis on rural areas. As long as the engagement of persons by the National Rural Health Mission does not lead to an employment in the State Services as long and such engagement does not even propose to give any preferential right to any person to be engaged in civil services, persons like the petitioners who are otherwise included in the rank list for different services cannot have any grievance. Ultimately, public interest is sub served, if an agency like National Rural Health Mission utilizes its recourses and deploys personnel in an area where the services of para medics like Staff Nurses and Junior Public Health Inspectors are surely needed. At the same time, it is necessary to ensure that the interests of persons like the petitioners who are included in the rank list published by W.P. (C) Nos.15875 and 19256 of 2008 6 the PSC at the end of long selection process are safeguarded and the list published by the PSC is not permitted to expire necessitating the Government to undertake either selection process on depriving persons like the petitioners of a chance of entry in Government service in spite of having been found eligible in that regard. In the result, the writ petition is disposed of in the following terms: i) Second respondent-the Director of Health Services shall assess the number vacancies in the post of Staff Nurse in Kozhikode District and Junior Public Health Inspector Gr.II in Kasargod district. In assessing the number of vacancies reference may also be made to the documents which are produced along with the writ petition. Such materials shall be placed before the Director of Health Services by the petitioners within one month from today. The determination of the vacancies in the first instance shall be completed within three months from today and such vacancies shall be reported to the PSC. W.P. (C) Nos.15875 and 19256 of 2008 7 ii) The process shall be repeated once in every three months during the currency of the rank list. Vacancies shall be reported to the PSC as and when they arise. iii) Thereafter, once the Director of Health Services decides to fill up those vacancies and on receipt of intimation from the Directorate of Health Services, PSC shall enforce the rank list and persons included in the rank list shall be advised from time to time. iv) It is made clear without there being any equivocation whatsoever that the deployment of personnel by the National Rural Health Mission shall not operate in a manner as to dilute the vacancies which otherwise arises in different posts in the Health Services Department. (V.GIRI, JUDGE) ma W.P. (C) Nos.15875 and 19256 of 2008 8 facie, the stand taken in the statement filed on behalf of the respondents seem to be inconsistent with the policy of the Government as outlined in Circular No.4441/Adv.C3/97/P&ARD dated 21.3.1997 referred to by the petitioner in Ground D of the writ petition. Learned counsel for the petitioner is also right in submitting that statement is silent on the number of provisional hands who are currently discharging duties as Staff Nurses in Gr.II and I. Leave vacancies with a duration of six months are eligible to be considered as substantive vacancies and is W.P. (C) Nos.15875 and 19256 of 2008 9 therefore liable to be reported to the Commission not merely by the reason of the Circular, but going by Rule 5, Part II of K.S.& S.S.R. Even short term vacancies between 3 months and six months should be reported to the Commission, if the vacancies are likely to last long and new vacancies are likely to arise. When there is a rank list, vacancies will have to be invariably filled up from the rank list. Second respondent shall file an additional statement clearly indicating the number of persons working as Staff Nurses on a provisional basis and the duration of such short term vacancies. Statement should also indicate why persons from the rank list should not be accommodated against such short term vacancies even if it is on a provisional basis. Post on 23.6.2008. V.GIRI, JUDGE) ma W.P. (C) Nos.15875 and 19256 of 2008 10 W.P. (C) Nos.15875 and 19256 of 2008 11 W.P. (C) Nos.15875 and 19256 of 2008 12 W.P. (C) Nos.15875 and 19256 of 2008 13