IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 9TH NOVEMBER 2009 / 18TH KARTHIKA 1931 WP(C).No. 27888 of 2009(E) -------------------------- PETITIONER(S): --------------------- C.R.RAMACHANDRAN NAIR, JUNIOR SUPERINTENDENT, MEDICAL COLLEGE HOSPITAL, KOTTAYAM. BY ADV. SRI.S.RADHAKRISHNAN SRI.S.RAJ MOHAN SMT.J.DEEPTHI ROSE RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REP. BY SECRETARY, HEALTH & FAMILY WELFARE (K) DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR, HEALTH SERVICES DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. 3. TH DIRECTOR, MEDICAL EDUCATION SERVICE, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. 4. THE SUPERINTENDENT, MEDICAL COLLEGE HOSPITAL, KOTTAYAM. 5. THE SENIOR ADMINISTRATIVE OFFICER DUEL CONTROL OPTION CELL, O/O DIRECTOR OF HEALTH SERVICES, THIRUVANANTHAPURAM. GOVERNMENT PLEADER SMT.ANU SIVARAMAN FOR R1 TO 5 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09/11/2009, ALONG WITH WPC NO. 29022 OF 2009 WPC NO. 27925 OF 2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. ================ W.P.(C) NOs. 27888, 27925 & 29022 OF 2009 =============================== Dated this the 9th day of November, 2009 J U D G M E N T The issue raised in these writ petitions is regarding the validity of the rejection of withdrawal of options exercised by the petitioners in pursuance to the Government Order dated 25/10/2008 produced as Ext.P1 in WP(C) No.27888/09. 2. The issue raised in the writ petitions being common, these writ petitions are heard and disposed of by this common judgment and for the sake of convenience, I shall be referring to the facts as pleaded in WP(C) No.27888/09. 3. The petitioner herein is a Junior Superintendent under the Health Service Department posted at the Medical College Hospital, Kottayam. From June 2007, the respondents have abolished the Dual Control System of staff in the Medical Education Department. Following this decision, Ext.P1 Government Order dated 25/10/2008 was issued inviting options from all Ministerial staff, Nurses, Para Medical Staff under the establishment of the Director of Health Services and working in the Medical Education Department. These employees could opt to WPC 27888, 27925 & 29022/09 :2 : go over to the Medical Education Department by virtue of Ext.P1. 4. It is stated that the employees were to file option in the prescribed form in Appendix II within a period of 45 days from the date of Ext.P1 and that the options will be scrutinized by a cell as ordered in para (iv) of the Government Order within a period of one month of option, that is by 15/1/2009. The rules of option provided in Appendix I also show that if the staff who opt for Department of Medical Education exceed the existing sanctioned strength of that department and absorption was to be done on the basis of seniority in the cadre and availability of posts in the Department of Medical Education. It is also provided that filing of option does not ensure a post in the Medical Education Department. 5. In pursuance to Ext.P1, petitioner exercised his option for Medical Education Department on 1/12/2008. However, for reasons of his own, by Ext.P2 dated 29/12/2008, he withdrew the option and Ext.P2 also contains an endorsement of the Superintendent of the Medical College, Hospital recommending and forwarding Ext.P2 for further action. This was followed by Ext.P3 dated 16/1/2009, which again was recommended and WPC 27888, 27925 & 29022/09 :3 : forwarded by the Superintendent of the Medical College. 6. Long thereafter, on 27/2/2009, by Ext.P4, list of optees were published, which indicates that as against 6022 posts of staff under the establishment of Director of Health Services working in the Medical Education Service, 3463 had exercised option to continue under the Director of Medical Education. After the publication of Ext.P4, again the petitioner submitted Ext.P5 requesting for cancellation of his option, which again is seen to have been recommended and forwarded by the Superintendent. 7. Finally, Ext.P6 was issued by the 1st respondent, again publishing the list of optees. Thereafter, Ext.P7 was issued by the Director of Health Service on 29/8/09, directing that the employees in the list be relieved from the Health Service Department for joining in the Medical Education Department. Annexure to Ext.P7 is a list of Junior Superintendents, who have opted for Medical Education Department and this includes the petitioner, who has been posted at Kottayam Medical College itself. 8. Petitioner again represented for cancellation of the option by Ext.P8, which once again was forwarded by the District WPC 27888, 27925 & 29022/09 :4 : Medical Officer to the Director of Health Services. Thereafter, by Ext.P9 proceedings of the 3rd respondent, the petitioner was ordered to be relieved as ordered in Ext.P7. It was thereupon that the writ petition is filed. 9. When the writ petition was taken up for hearing, the form of option was made available in Court, which shows that employees were required to give a declaration in the following manner: I...................................hereby opt to be absorbed/continued in the Department of Medical Education and if my option is accepted, I will not put forth any claim in future, to return to Health Service Department under any provisions. (emphasis supplied) 10. The contention raised by the counsel for the petitioner is that although the petitioner had opted for Medical Education Department, before its scrutiny and acceptance, the option was withdrawn. It is stated that once option was withdrawn before scrutiny and acceptance, respondents have acted illegally in shifting him from Health Service Department to Medical Education Department and ordering that he shall be relieved. 11. A counter affidavit has been filed by the 1st respondent. The contention raised by the 1st respondent is that as WPC 27888, 27925 & 29022/09 :5 : per the option form, the applicants have already submitted a declaration that once they opt and their option is accepted, they will not put forth any claim in future to return to Health Service Department. It is stated that no one in the Health Service Department was compelled to file option and that the options have been exercised voluntarily. It is stated that after consideration, orders were issued for transfer of 3096 posts in 57 categories from Health Service Department to Medical Education Service as per Ext.P6. It is stated that after the options were exercised, requests were received for cancellation and that such requests were rejected by Ext.P7 and that this was the uniform stand taken by the Government. 12. The only question that arises for decision in this case is whether the petitioner could have withdrawn the option exercised by him. A reading of Ext.P1 Government Order shows that the options were to be exercised within 45 days of the said order. Admittedly,within the period, on 1/12/2008, petitioner exercised his option. Such options were to be scrutinized before 15/1/2009. A reading of the order and the declaration furnished by the optees show that Ext.P1 Government Order contemplated acceptance of WPC 27888, 27925 & 29022/09 :6 : the option exercised by the employees and that once these options are accepted, employees will have no claim to go back to the Health Service Department. Evidently, petitioner had withdrawn his option long prior to 15/1/2009. In the counter affidavit, respondents also have no case that before 15/1/2009, the option exercised by the petitioner was scrutinized or accepted. In such circumstances, the only conclusion possible is that his withdrawal was prior to the scrutiny and acceptance of option. 13. The Supreme Court had occasion to consider the right of an employee to withdraw his application for voluntary retirement even inspite of a provision in the Scheme that applications once made could not be withdrawn. Examining this issue, Apex Court has held that until the application was accepted and decision communicated, the employee had the liberty to withdraw his application. See in this Connection Bank of India v. O.P.Swarnakar {(2003) 2 SCC 721} and Hindustan Copper Ltd. v. Banshi Lal (AIR (2006) SC 3574). 14. Applying the law as laid down by the Apex Court, to the facts of this Case, it can be seen that the petitioner could WPC 27888, 27925 & 29022/09 :7 : withdraw his option prior to its scrutiny and acceptance. Admittedly, the option was withdrawn prior to its acceptance. If so, the rejection of the petitioner's withdrawal of option evidenced by Exts.P7 and the order Ext.P9 to relieve him are illegal. 15. Therefore, the writ petition is disposed of directing the respondents to accept the withdrawal of the option submitted by the petitioner and pass appropriate orders enabling the petitioner to continue as Junior Superintendent in the Health Service Department. Necessary orders shall be passed by the 3rd respondent, as expeditiously as possible, at any rate within 4 weeks of production of a copy of this judgment. 16. In so far as WP(C) No.29022/2009 is concerned, as in the case of the petitioner in WP(C) No.27888/09, the option was exercised by the petitioner on 1/12/2008 and was withdrawn by him on 13/1/2009. Ext.P2 shows that on 13/1/2009, the withdrawal of option of the petitioner was forwarded to the DME. Therefore, in this case also withdrawal of option was before its scrutiny and acceptance. If so, the petitioner is also entitled to have his option withdrawn and continue in the Health Service Department. Respondents shall pass appropriate orders enabling WPC 27888, 27925 & 29022/09 :8 : his continuance in the Health Service Department. 17. In so far as the petitioner in WP(C) No.27925/2009 is concerned, she is a Staff nurse, who exercised her option on 26/11/2008. She withdrew her option only on 6/2/2009, which is long after 15/1/2009, the last date of scrutiny and acceptance. If so, once option is accepted, she could not have withdrawn it. Therefore, her withdrawal of option by Ext.P5 could not have been accepted. This writ petition is only to be dismissed and I do so. In the result WP(C) No.27888/09 and 29022/09 will stand disposed of and WP(C) No.27925/2009 will stand dismissed. ANTONY DOMINIC, JUDGE Rp