IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 18TH MAY 2010 / 28TH VAISAKHA 1932 WP(C).No. 32056 of 2009(B) -------------------------- PETITIONER(S): ------------------------ 1. USHA C.K. , STAFF NURSE GRADE I, COMMUNITY HEALTH CENTRE, VAIKOM, KOTTAYAM DIST. 2. MINI S. STAFF NURSE GRADE I, COMMUNITY HEALTH CENTRE, VAIKOM, KOTTAYAM DIST. BY ADV. SMT.P.V.ASHA RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REP. BY SECRETARY TO GOVT. HEALTH AND FAMILY WELFARE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF HEALTH SERVICES, THIRUVANANTHAPURAM. 3. DIRECTOR OF MEDICAL EDUCATION, THIRUVNANTHAPURAM. 4. DISTRICT MEDICAL OFFICER OF HEALTH, KOTTAYAM. 5. SUPERINTENDENT, COMMUNITY HEALTH CENTRE, VAIKOM, KOTTAYAM,DIST. 6. SUPERINTENDENT , MEDICAL COLLEGE HOSPITAL, ALAPPUZHA. GOVERNMENT PLEADER SRI.ANTONY MUKATH FOR R1 & R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD 18/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.32056/09 APPENDIX PETITIONERS' EXHIBITS EXT.P1: TRUE COPY OF GO(P) NO.548/2008/H&FWD DT 25.10.2008. EXT.P2: TRUE COPY OF OPTION DT 1.12.08 OF 1ST PETITIONER ATTESTED ON 3.12.08. EXT.P2A: TRUE COPY OF THE OPTION OF 2ND PETITIONER ATTESTED ON 3.12.08. EXT.P3: TRUE COPY OF LETTER NO.A1-6723/08 DT 4.12.08 OF THE 5TH RESPONDENT TO 4TH RESPONDENT. EXT.P3A: TRUE COPY OF LETTER NO.A1-6723/2008 DT 20.1.09 OF THE 5TH RESPONDENT TO 4TH RESPONDENT. EXT.P4: TRUE COPY OF LETTER NO.A1-6723/2008 DT 25.3.09 OF THE 5TH RESPONDENT TO 2ND RESPONDENT. EXT.P5: TRUE COPY OF THE LETTER DT 5.5.09 OF 4TH RESPONDENT ALONG WITH RELEVANT PORTION OF THE LIST OF OPTEES. EXT.P6: TRUE COPY OF THE REPRESENTATION DT 8.6.09 OF 1ST PETTIONER TO 2ND RESPONDENT. EXT.P6A: TRUE COPY OF REPRESENTATION DT 8.6.09 OF 2ND PETITIONER. EXT.P7: TRUE COPY OF LETTER NO.A1-6723/09 DT 10.6.09 OF 5TH RESPONDENT. EXT.P8: TRUE COPY OF LETTER NO.A1-6723/09 DT 12.6.09 OF 5TH RESPONDENT. EXT.P9: TRUE COPY OF GO(P) NO.167/2009/H&FWD DT 17.6.09. EXT.P10: TRUE COPY OF THE LIST OF STAFF NURSES TRANSFERRED FROM DMO, KOTTAYAM. EXT.P11: TRUE COPY OF LIST OF STAFF ALLOTTED TO ALAPPUZHA. EXT.P12: TRUE COPY OF THE CIRCULAR NO.C1-7441/07 DT 20.11.08. //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ W.P.(C) NO. 32056 OF 2009 (B) ===================== Dated this the 18th day of May, 2010 J U D G M E N T Petitioners are Staff Nurses in the Community Health Centre, Vaikom, where they were posted since May 2000. Consequent on the abolition of Dual Control System, Government issued Ext.P1 order dated 25/10/2008. By this order, options were called for from the employees for posting in the Medical Education Department. Para 5 provides for the options and the options were to be exercised in the form prescribed and were to be made to the Senior Administrative Officer duly recommended by the Head of Office. It is also provided that the employees shall file their options within 45 days from the date of the order. 2. According to the petitioners, by Exts.P2 and P2A dated 1/12/2008, they exercised option for posting in the Medical College, Alappuzha and Vandanam. It is stated that the option so exercised by them were recommended by the 5th respondent, the Head of Office, by his endorsement dated 3/12/2008 and that the same was forwarded to the 4th respondent as per Ext.P3. However, on enquiry, petitioners came to know that the 4th WPC No. 32056/09 :2 : respondent did not receive Ext.P3 and therefore, on being so informed, the 5th respondent sent Ext.P3A directly to the 2nd respondent. However, when list of optees were published by the 2nd respondent in February, 2009, for the apparent reason that the options exercised by the petitioners did not reach the 2nd respondent within the time specified in Ext.P1, their names were not included in the list. 3. Thereupon, they again approached the 5th respondent, who issued Ext.P4 to the 4th respondent informing that the petitioners had exercised their options as per Exts.P2 and P2A and that the same were forwarded on 04/12/2008. Thereafter, the 4th respondent forwarded a list of those from Kottayam District who have opted in pursuance to Ext.P1 before 15/12/2008 as per Ext.P5 letter. It is seen from the list attached to Ext.P5 that the names of the petitioners are included at Sl.Nos.77 and 78. Even thereafter, petitioners continued to make representations in the matter, which were also forwarded to the 4th respondent as per Exts.P7 and P8. Finally, when Ext.P9 Government Order was issued shifting 1175 posts from DHS to DME, that included 159 persons from Kottayam District, a list of which is Ext.P10. This WPC No. 32056/09 :3 : did not include the petitioners for the reason that their options did not reach the 2nd respondent before 15/12/2008. It was thereupon that this writ petition was filed. 4. In this writ petition, this Court after hearing the parties passed interim order dated 25/1/2010 directing that two posts of Staff Nurse Grade I in the Medical College Hospital, Alappuzha shall not be filled up and the said order remains in force. 5. The stand taken by the counsel for the petitioners is that immediately on circulation of Ext.P1 inviting options, the petitioners exercised their options which were forwarded to the 4th respondent on 4/12/2008. It is stated that even thereafter, by Ext.P3A, the 5th respondent forwarded the options to the 2nd respondent on 20/1/2009. It is stated that the fact that they had exercised their option before 15/12/2008 is evidenced from the list attached to Ext.P5, where the 4th respondent has stated that the petitioners had exercised the options before 15/12/2008. It is stated that, therefore, the petitioners having exercised their options within the time, even if some lapse has occurred on the part of the authorities, the petitioners should not be deprived of their opportunity to go over to the Medical Education Department. WPC No. 32056/09 :4 : Counsel also points out that number of optees is much less than the required number of Staff Nurses, and therefore, even now, the respondents can consider their request for option, which will not be to the prejudice to anyone of the Staff Nurses. 6. Counter affidavits have been filed by the respondents. In the counter affidavit filed by the 2nd respondent, it is stated that the petitioners' options were received in his office after the last date for submitting the option. It is stated that the last date for submitting the options was 15/12/2008 and that the options were forwarded by the 4th respondent only on 20/1/2009. According to him, it was therefore that the option belatedly received from the 4th respondent was not acted upon. 7. In the counter affidavit filed by the 4th respondent, the DMO, what is stated is that the options submitted by the petitioners were received in his office only on 11/12/2008, when according to him, the petitioners themselves came to his office and submitted their options. It is stated that the time limit for furnishing the options ended on 8/12/2008 and that options received in time were forwarded on 6/12/2008 and 9/12/2008. He submits that since the options were submitted by the WPC No. 32056/09 :5 : petitioners belatedly, the same could not be forwarded. 8. The 5th respondent, the Head of the Office where the petitioners are working states that the petitioners submitted their options on 4/12/2008 and that on the same day itself, he forwarded it to the 4th respondent for onward transmission to the 2nd respondent. It is stated that since the petitioners asserted that they will present the options before the 4th respondent, he handed over the options to the petitioners themselves for submission to the 4th respondent. 9. While the petitioners are therefore definite in their stand that they submitted their options on 1/12/2008 and that the same was forwarded to the DMO on 4/12/2008, in my view, the stand as reflected in the counter affidavits filed by respondents 2, 4 and 5 are contradictory. 10. First of all, there is nothing to indicate either in Ext.P3 forwarding the option exercised by the petitioners or in the counter affidavit filed by the 5th respondent that the 5th respondent had entrusted the petitioners the options exercised by them for delivering before the 4th respondent. Therefore, the bald statement made in the counter affidavit of the 5th respondent to WPC No. 32056/09 :6 : that effect is unacceptable. Once it is accepted that option was exercised by the petitioners in time, and that it was forwarded by the petitioners on 4/12/2008, even if there was some delay at some office in delivering the same immediately to the office of the 4th respondent, I am not prepared to think that the petitioners should be made to suffer. Even if the theory of the 5th respondent that the petitioners agreed to deliver the option form before the 4th respondent is accepted, I am not prepared to think that the petitioners who are clamouring for accepting the option and consequent transfer to places of their convenience, would have delayed in delivering such options to the competent authority viz., the 4th respondent. Therefore, the delay, if at all, could not have been attributable to the petitioners, but can be attributable only to respondents 4 and 5. If that be so, even if the options have reached beyond 8/12/2008 as contended by the 4th respondent, the petitioners cannot be deprived of the chance to exercise their options. If that be so, the options ought to have been accepted and the petitioners claim for posting as opted by them in Exts.P2 and P2A ought to have been considered by the 2nd respondent when he published the list in February, 2009. WPC No. 32056/09 :7 : 11. For all these reasons, particularly having regard to the specific case of the petitioners that the number of optees is less than the required number of staff nurses, and also in view of the fact that two posts are already kept vacant consequent on the interim order passed by this Court as also the fact that in Ext.P10 transfer order, even people who are juniors have been given posting, I am inclined to direct the 2nd respondent to act upon Exts.P2 and P2A options exercised by the petitioners and issue consequential orders. This shall be done, as expeditiously as possible, at any rate within 6 weeks of production of a copy of this judgment. Needless to say that until such orders are passed, the posts who are kept vacant shall not be filled up. Writ petition is disposed of as above. ANTONY DOMINIC, JUDGE Rp