IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI MONDAY, THE 6TH APRIL 2009 / 16TH CHAITHRA 1931 WP(C).No. 20972 of 2008(V) -------------------------------------- PETITIONER(S): ----------------------- DR.PADMAKUMAR.K.G., CIVIL SURGEON, PAEDIRATRICIAN, GOVT.TALUK HOSPITAL, KARUNAGAPPILLY, KOLLAM. BY ADV. SMT.S.KARTHIKA MR.M.S.UNNIKRISHNAN SMT.K.P.GEETHA MANI MR.M.R.ANISON RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REP.BY ITS PRINCIPAL SECRETARY TO GOVT., HEALTH AND FAMILY WELFARE DEPARTMENT, GOVT.SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF HEALTH SERVICES, THIRUVANANTHAPURAM. 3. THE SUPERINTENDENT, GOVT.TALUK HOSPITAL, KARUNAGAPPALLY. 4. DR.SAPHARULLAKHAN, ASST.SURGEON AND PAEDIRATRICIAN, GOVT. TALUK HOSPITAL, KARUNAGAPPALLY, KOLLAM. * ADDL. R5 TO R7 IMPLEADED ADDL. R5: KERALA GOVT. MEDICAL OFFICERS ASSOCIATION, TRIVANDRUM. ADDL. R6: KERALA GOVT. OFFICERS ASSOCIATION, TRIVANDRUM. ADDL. R7: DENTAL SURGEON ASSOCIATION, KOTTAYAM. * ARE IMPLEADED AS PER ORDER DATED 11/07/2008 IN WPC. R1 TO R3 BY GOVERNMENT PLEADER SMT.SUDHA DEVI R4 BY ADV. MR.ELVIN PETER P.J. R6 BY ADV. MR.VIJAYAN. K.U., MR.K.N.SREEKUMARAN R5 BY ADV. MR.SAJEEV KUMAR K.GOPAL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/04/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO. 20972/2008-V APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE GUIDELINES ISSUED BY GOVT. DATED 14/12/1994. EXT.P2: COPY OF THE G.O.(MS)142/2000/H&FWD DATED 12/06/2000. EXT.P3: COPY OF THE G.O.(P)3000/98/FIN. DATED 25/11/1998. EXT.P4: COPY OF THE ORDER NO.EA1-100/07/DHS DATED 05/07/2007. EXT.P5: COPY OF THE JUDGMENT DATED 04/01/2008 IN W.P.(C). NO. 405/2008. EXT.P6: COPY OF THE REPRESENTATION DATED 04/02/2008 BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXT.P7: COPY OF THE G.O.(RT)1964/08/H&FWD DATED 03/06/2008. EXT.P8: COPY OF THE LETTER DATED 22/04/2008 ISSUED BY THE 2ND RESPONDENT. EXT.P9: COPY OF THE REPRESENTATION DATED 07/04/2008 GIVEN BY THE KERALA GOVT. MEDICAL OFFICERS' ASSOCIATION. EXT.P10: COPY OF THE STATEMENT SHOWING THE DETAILS OF CASULAITY DUTY ATTENDED BY THE 4TH RESPONDENT FOR THE PERIOD FROM 12/04/2006 TO 06/07/2008. EXT.P11: COPY OF THE MINUTS OF THE MEETING HELD BY THE ADDITIONAL SECRETARY (H) AT 3.30 P.M. ON 07/04/2008. EXT.P12: COPY OF THE STATEMENT SHOWING THE DETAILS OF DOCTORS ALREADY WORKING IN THE 15 POSTS SANCTIONED IN THE HOSPITAL. EXT.P13: COPY OF THE RELEVANT PAGES ORDER NO.EA3-117959/99/DHE DATED 10/10/2000. RESPONDENT'S EXHIBITS& ANNEXURES: EXT.R4(a): COPY OF THE ORDER DATED 10/12/2002 OF THE DISTRICT MEDICAL OFFICER OF HEALTH, KOLLAM. EXT.R4(b): COPY OF THE ORDER DATED 31/01/2003 OF THE DISTRICT MEDICAL OFFICER OF HEALTH, KOLLAM. EXT.R4(c): COPY OF THE ORDER DATED 14/02/2005 OF THE DISTRICT MEDICAL OFFICER OF HEALTH, KOLLAM. EXT.R4(d): COPY OF THE ORDER DATED 28/03/2005 OF THE DISTRICT MEDICAL OFFICER OF HEALTH, KOLLAM. EXT.R4(e): COPY OF THE LETTER DATED 18/07/1994 OF THE DIRECTOR OF MEDICAL EDUCATION, THIRUVANANTHAPURAM. (P.T.O.) W.P.(C). NO. 20972/2008-V EXT.R4(f): COPY OF THE ORDER, G.O. DATED 30/09/2008 ISSUED BY THE GOVERNMENT EXT.R4(g): COPY OF THE REPRESENTATION DATED 20/12/2008 FILED BY THE 4TH RESPONDENT. ANNEXURE R3(a): COPY OF THE COMPLIANCE REPORT OF ORDER OF HIGH COURT DATED 12/01/2009. ANNEXURE R3(b): COPY OF THE DETAILS REGARDING THE NUMBER OF DAYS OF CASUALITY DUTY TAKEN BY THE MDICAL OFFICERS OF THE HOSPITAL. //TRUE COPY// P.S. TO JUDGE Rs/ V.GIRI, J. ----------------------------------- W.P.(C).No.20972 of 2008 ----------------------------------- Dated this the 6th day of April, 2009. JUDGMENT The petitioner, who is working as Civil Surgeon in the Government Taluk Hospital, Karunagappally, is aggrieved by Ext.P7 order passed by the Government bringing about a change in the guidelines contained in Ext.P1 as regards deployment of Medical Officers for Casualty duty. Ext.P7 order came to be issued on a motion made by the 4th respondent, who is also an Assistant Surgeon working in the Taluk Hospital, Karunagappally. He had earlier approached this court in W.P.(C)No.405/08 contending that Superintendents and Assistant Surgeons having sufficient seniority working in different Taluk Hospitals are almost completely being exempted from posting in the casualty department in the Taluk Hospitals and this, in turn, increases the burden of the doctors who are posted in the Casualty W.P.(C).No.20972 of 2008 :: 2 :: Department and also the Junior most amongst the Assistant Surgeons, who are posted in the general side, as they could be required to be deployed in the Casualty Department for more than one session continuously. 2. By Ext.P5 judgment, I had directed the Government to look into the grievances highlighted by the petitioner therein (4th respondent herein) and take a decision, after ascertaining the views of the Director of Health Services. 3. It seems that the Director of Health Services had forwarded the views to the Government, as evidenced by Ext.P8. The views of the Kerala Government Medical Officers' Association were also ascertained and obtained as per Ext.P9. A meeting was held by the Government Secretary and the Minutes of the same are produced as Ext.P11. The Government decided to amend Clause IV of Ext.P1 guidelines. W.P.(C).No.20972 of 2008 :: 3 :: The existing guidelines and the modified guidelines are given in the form of a tabular statement, which reads as follows: Existing Guidelines Modified Guidelines IV.Taluk Hospital and Hospitals with more than 11 Medical Officers All the Medical Officers of less than 20 years of service or below 50 years of age except the Superintendents will take turn duty of 12 hours duration shift. If the number of such medical officers are less than 7 the Junior among those above 20 years service will be posted for turn duty. All except Superintendent and Deputy Superintendent shall conduct P.M examinations on turn. IV. a) Taluk Hospitals and (b) Hospitals having more than 11 Medical Officers. If such hospitals have a casualty unit, 24 hours casualty service should be maintained with 4 doctors posted for casualty duty. If sufficient number of casualty Medical Officers are not available due to vacancy or leave, the doctors from general pool shall also be posted for casualty duty by rotation/turn. All the Medical Officers having less than 20 years of service or below 50 years of age (except the Superintendent) shall take turn duty of 12 hours duration). All except Superintendent and Deputy Superintendent shall conduct P.M examination on turn. 4. Ext.P7 has been challenged in this writ petition. 5. A statement has been filed by the Government. Counter affidavits have been filed by the contesting respondents. W.P.(C).No.20972 of 2008 :: 4 :: 6. The dispute relates to the question as to whether the seniors among the Assistant Surgeons, who are posted on the general side of Taluk Hospitals having 11 or more medical officers should be exempted from Casual duty. 7. As per Clause IV of Ext.P1, as it earlier stood, exemption as such for Doctors with less than 20 years' service was not actually contemplated. An exemption was contemplated only in favour of the Superintendents and the Deputy Superintendents. What is now directed to be done by the Government is to see that the doctors from the general pool, irrespective of the age or number of years of service, except the Superintendent, are required to be posted for casual duty by rotation/turn. 8. The statement filed by the Government seems to support this modification on the ground that there is shortage of medical officers in the Taluk Hospitals, and W.P.(C).No.20972 of 2008 :: 5 :: therefore, exemption, even to senior doctors, results in serious deficit of available man power, for effectively dealing with the problems of the patients. 9. Deployment of Government employees is a matter which should best be left to the wisdom of the Government. The bottom line is that there is no infraction of any guidelines having the force of law or statutory rules, nor should it result in patent arbitrariness or error on the face of the record. 10. Going by the original guidelines and the amended guidelines, it cannot be said that there is any patent arbitrariness in the modification of Clause IV as brought about in Ext.P7. 11. Learned Senior Counsel for the petitioner Smt.Seemanthini submits that the views of the Director of Health Services, as discernible from Ext.P8, have not been W.P.(C).No.20972 of 2008 :: 6 :: followed by the Government and this amounts to non- compliance with the directions in Ext.P5 judgment. 12. It is true that in Ext.P5 the views of the Director of Health Services were also directed to be ascertained. But, it cannot be said that the Government is not entitled either to accept the views of the Director of Health Services wholly, in part or reject the same as such. The decision rests with the Government. 13. I do not think that the views of the Director of Health Services have been ignored. I also take note of the fact that the Government has made it clear in its statement that it has already informed the Director of Health Services that the turn duty ordered as per Ext.P1 needs to be reviewed further, in view of the introduction of specialty/administrative cadre and further views have been called for from the Director of Health Services. W.P.(C).No.20972 of 2008 :: 7 :: 14. For the present, I am satisfied that there is no reason warranting interference with Ext.P7. But, it is only appropriate that doctors who have comparative seniority in service are not burdened with posting in casualty department as frequently as persons who have lesser years of service. It cannot be said that seniority in service should not carry with it any privileges whatsoever. Moreover, the senior amongst the doctors from the general pool could possibly be called upon in emergency cases even when it is not their turn as such. Accordingly, the writ petition is disposed of directing the Government to see that the Director of Health Services implements a roster by which the doctors, who are comprehended by the amended guidelines, are posted for casualty duty, but in doing so, senior amongst the doctors should not be subjected to as frequent turns in the Casualty W.P.(C).No.20972 of 2008 :: 8 :: Department as the other junior doctors. In other words, a graded system should be brought into force. This shall be done within three months from the date of receipt of a copy of this judgment. Subject to the above, the Government is permitted to implement the amended guidelines. Sd/- V.GIRI) JUDGE sk/ //true copy//