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. 29135 of 2009(J) -------------------------- PETITIONER(S): ---------------------- SANTHAKUMARI.B, STAFF NURSE GRADE I, MEDICAL COLLEGE HOSPITAL, KOTTAYAM. BY ADV. SMT.P.V.ASHA RESPONDENT(S): ------------------------ 1. STATE OF KERALA REPRESENTED BY SECRETARY TO GOVT. HEALTH AND FAMILY WELFARE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF HEALTH SERVICES, THIRUVANANTHAPURAM. 3. DIRECTOR OF MEDICAL EDUCATION, THIRUVANANTHAPURAM. 4. SUPERINTENDENT, MEDICAL COLLEGE HOSPITAL, KOTTAYAM. 5. DISTRICT MEDICAL OFFICER OF HEALTH, KOTTAYAM. GOVERNMENT PLEADER SRI.ANTONY MUKATH FOR R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.29135/09 APPENDIX PETITIONER'S 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 PETITIONER ATTESTED ON 5.12.08. EXT.P3: TRUE COPY OF THE LETTER NO.A1-10974/08/MCHG DT 8.12.08 OF 5TH RESPONDENT ALONG WITH THE LIST OF OPTEES. EXT.P4: TRUE COPY OF LETTER DT 21.3.09 OF THE 5TH RESPONDENT ALONG WITH THE APPEAL AND OPTIONS SUBMITTED BY PETITIONER. EXT.P5: TRUE COPY OF GO(P) NO.167/2009/H&FWD DTD.17.6.09. EXT.P6: TRUE COPY OF ORDER NO.H3-1431/2008/DME DT 31.8.09. EXT.P7: TRUE COPY OF LIST OF STAFF NURSES UNDER THE DMO(H), KOTTAYAM. EXT.P8: TRUE COPY OF THE ORDER NO.A5-10371/09/DMOHK DT 15.10.09. //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ W.P.(C) NO. 29135 OF 2009 (J) ===================== Dated this the 18th day of May, 2010 J U D G M E N T Petitioner is a Staff Nurse working in the Medical College Hospital, Kottayam. On issuance of Government Order dated 25/10/2008, inviting options consequent on the abolition of dual control system, she submitted Ext.P2 option to the 4th respondent opting to be under the DME and in the Medical College Hospital, Kottayam. In Ext.P3 list, among those who have exercised option, petitioner's name was included at Sl.No.81. It is stated that although the 4th respondent forwarded the petitioner's option to the 2nd respondent, when final list of the optees was published in February, 2009, the petitioner's name was not included. 2. Representations were filed and that did not yield any result. Finally, in June 2009, when posts were shifted and persons were transferred, petitioner was excluded. On that basis, she was ordered to be transferred to Primary Health Centre, Koottickal and it was at that stage this writ petition was filed. This Court stayed the order of transfer and also passed order dated 23/11/2009 directing respondents 3 and 4 to keep one post of Staff Nurse WPC No. 29135/09 :2 : vacant in the Medical College Hospital, Kottayam under the DME and that order remains in force. 3. Having regard to the facts, the only issue to be considered is whether the petitioner had exercised option within the time and whether her option had reached the 2nd respondent before 15/12/08, the last date for submitting the option. 4. There is no counter affidavit by the 2nd respondent. An affidavit has been filed by the 4th respondent, para 2 of which reads as under: It is submitted that the option in proper form submitted by Smt.Santhakumari, Staff Nurse of this Hospital dated 1.12.2008 opting Directorate of Medication Education as part of abolition of Dual Control system in Medical College Hospitals by Director of Health Services has been included in the list of 128 Staff Nurses who have given option to continue in Directorate of Medical Education and the same was submitted directly to the Directorate of Health Services through Special Messenger Sri.C.R.Ramachandran Nair, Junior Superintendent as per letter No.A1-10974/08/MCHG dated 8.12.2008. But when preliminary list of employees whose options are accepted, her name was not seen included. Her appeal dated 20.3.2009 addressed to the Special cell for bifurcation at the Directorate of Health Services Trivandrum was forwarded from this office as per letter No.A2-2769/09/MCHG dated 21.3.2009. But when posting orders issued after considering appeals she was not included. Then she again submitted a representation to this office and the same was WPC No. 29135/09 :3 : forwarded to the District Medical Officer of Health, Kottayam and the Principal, Medical College, Kottayam as per letter No.A2-8476/09/MCHG dated 7.11.2009. 5. From the affidavit of the 4th respondent, it is obvious that the averment of the petitioner of having exercised option and that the 4th respondent had forwarded the option to the 2nd respondent within the time specified in the Government order dated 25/10/08 are factually correct. If that be so, there is no reason why the petitioner should have been excluded when the list of those who had opted and were transferred were published, acting upon the option exercised by the petitioner. Consequently, the petitioner is entitled to succeed. Writ petition is therefore disposed of directing the 2nd respondent to act upon Ext.P2 option exercised by the petitioner and to consider her for posting to the vacancy of Staff Nurse in the Kottayam Medical College under the DME kept vacant under order dated 23/11/09 passed by this Court. Orders shall be passed, as expeditiously as possible, at any rate within 6 weeks of production of a copy of this judgment. Until then, the post kept vacant shall not be filled up. It is further directed that the WPC No. 29135/09 :4 : petitioner shall be allowed to continue in the Kottayam Medical College as directed by this Court on 15/10/2009 and 19/10/2009 in the meanwhile. ANTONY DOMINIC, JUDGE Rp