IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI WEDNESDAY, THE 2ND JULY 2008 / 11TH ASHADHA 1930 WP(C).No. 13032 of 2008(B) -------------------------- PETITIONERS: -------------------- 1. N.PARVATHY, NURSING SUPDT., GRADE-II(RETD.), W/O.SRI.M.K.HARIDASAN, SREEHARI HOUSE, MYTHRI NAGAR, P.O.NELLIKODE, CALICUT-673 016. 2. T.O.MEERA, NURSING SUPDT., GRADE-II(RETD.), W/O.SRI.M.C.KRISHNAN KUTTY, "AMBADI", PALLIPPURATH THODIKA, KOVILAKAMKUNDU, MANJERI-P.O., MALAPPURAM DISTRICT. BY ADV. SRI.M.S.VINEETH RESPONDENTS: --------------------- 1. STATE OF KERALA, REP. BY ITS SECRETARY, DEPARTMENT OF HEALTH & FAMILY WELFARE, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF HEALTH SERVICES, KERALA STATE, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI.P. NANDAKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 13032 of 2008 APPENDIX PETITIONERS EXHIBITS: EXHIBIT-P1: TRUE COPY OF THE FINAL SENIORITY LIST OF STAFF NURSES FOR THE PERIOD FROM 01/01/1978 TO 06/07/1990 AS ON 21.12.2002 IN THE HEALTH SERVICES DEPARTMENT EXHIBIT-P2: TRUE COPY OF THE GOVERNMENT CIRCULAR NO.5328/RULES-1/99/P&ARD DATED 03.6.1999 EXHIBIT-P3: TRUE COPY OF THE REPRESENTATION OF 1ST PETITIONER SUBMITTED TO THE 1ST RESPONDENT DATED 03/10/2006 EXHIBIT-P4: TRUE COPY OF THE REPRESENTATION OF 2ND PETITIONER SUBMITTED TO THE 1ST RESPONDENT DATED 9/10/2006 EXHIBIT-P5: TRUE COPY OF THE G.O (RT) NO.1173/2007/H&FWD DATED 30/3/2007 EXHIBIT-P6: TRUE COPY OF THE REPLY LETTER NO.EE2-52522/07/DHS DATED 20/6/2007 FROM THE 2ND RESPONDENT''S OFFICE EXHIBIT-P7: TRUE COPY OF THE REPLY LETTER NO.31810/C1/2007/H&FWD DATED 14/8/2007 FROM THE 1ST RESPONDENT''S OFFICE EXHIBIT-P8: TRUE COPIES OF THE REPRESENTATIONS OF BOTH THE PETITINERS DATED 15/9/2007 SENT TO THE 1ST RESPONDENT EXHIBIT-P9: TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.P. (C) NO.37783 OF 2007 DATED 09/01/2008 EXHIBIT-P10: TRUE COPY OF THE G.O (RT) NO.872/2008/H& FWD DATED 11/3/2008 ISSUED BY THE 1ST RESPONDENT /TRUE COPY/ P.A. TO JUDGE V.GIRI,J. ------------------------- W.P ( C) No.13032 of 2008 -------------------------- Dated this the 2nd July, 2008 J U D G M E N T Petitioners retired as Nursing Superintendent Gr.II on 28.2.2007. They were aspiring for promotion to the post of Nursing Superintendent Gr.I. Apparently, according to them, though they were enough vacancies they were not promoted and the vacancies were kept unfilled. Their request for provisional promotion was also not considered. In Exhibit P9 judgment, this court had directed the petitioners claim for promotion with reference to the date of occurrence of the vacancies to be considered. It has been so held in Exhibit P9: “Now the petitioners have retired from service on 28.2.2007. Petitioner's claim under Exhibit-P8 can only be considered as one for notional promotion with reference to the date on which the vacancy arose. After having heard the learned Government Pleader also, this writ petition is disposed of directing the 1st respondent to look into Exhibit-P8 representation and after hearing the petitioners take a decision thereon within W.P ( C) No.13032 of 2008 2 three months from the date of receipt of a copy of this judgment untrammeled by Exhibit-P7. 2. Pursuant to Exhibit P9, Government has considered the petitioners case and rejected it under Exhibit P10. Paragraph 3 of the same reads as follows: “3. Government have examined the matter in detail. In the absence of Special Rules and finalised seniority list in the cadre of Nursing Superintendent Gr.II, provisional promotions are being resorted only to meet the exigencies for filling up the vacancies at the earliest. At the time of their retirement, they were working in Kozhikode District as Nursing Superintendent Gr.II and the proposal for provisional promotion from Director of Health Services received only on 19.3.2007. Since the petitioners retired from service on 28.2.2007, they were not included in the proposal. As such the petitioner's request for promotion on the date of occurrence of vacancies for which they were eligible cannot be granted. Hence their request is rejected. 3. It is obvious that Government has not understood the directions contained in Exhibit P9 judgment. This Court was aware of the fact that petitioners claim for promotion to the post of Nursing Superintendent Gr.I could be considered as only a claim for notional promotion in circumstances where they had already retired from service W.P ( C) No.13032 of 2008 3 on 28.2.2007. But nevertheless Government was directed to consider their claim for promotion with reference to the date of occurrence of the vacancies. This was after taking note of fact that they had already retired from service. Their claim was rejected under Exhibit P10 on the premise that petitioners had already retired from service on 28.2.2007 and proposal for promotion was received only on 19.3.2008. In my view, there is obvious non-application of mind. In the result, Exhibit P10 is set aside and the Government is directed to pass fresh order in terms of the directions already issued in Exhibit P9 judgment. Such order shall be passed within a period of three months from the date of receipt of a copy of this judgment, after hearing the petitioners. The writ petition is disposed of as above. (V.GIRI, JUDGE) ma W.P ( C) No.13032 of 2008 4 W.P ( C) No.13032 of 2008 5