IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI THURSDAY, THE 17TH SEPTEMBER 2009 / 26TH BHADRA 1931 WP(C).No. 23309 of 2009(G) -------------------------- PETITIONER(S): --------------- R.SUDHA, WORKING AS HEAD CLERK, DISTRICT HOSPITAL, KOTTAYAM, RESIDING AT VISHNU PRIYA HOUSE, KUDAMALOOR P.O., KOTTAYAM. BY ADV. SRI.JOMY GEORGE SRI.SEBASTIAN THOMAS RESPONDENTS: --------------- 1. STATE OF KERALA, REP. BY ITS CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. SECRETARY, HEALTH & FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 3. DIRECTOR OF HEALTH SERVICES, HEALTH SERVICES DIRECTORATE, THIRUVANANTHAPURAM. 4. DIRECTOR OF MEDICAL EDUCATION, MEDICAL EDUCATION DIRECTORATE, THIRUVANANTHAPURAM. BY SR. GOVT. PLEADER SMT. ANU SIVARAMAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/09/2009, ALONG WITH WPC NO. 25438 OF 2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI,J. ------------------------- W.P ( C) Nos.23309 & 25438 of 2009 -------------------------- Dated this the 17th September,2009 J U D G M E N T Issues which arise for consideration in these two writ petitions are interlinked. Petitioner in W.P (C) No.23309 of 2009 is the 4th respondent in W.P(C ) No. 25438 of 2009. Writ Petitions have been heard together and are being disposed of by a common judgment. Writ Petition No.23309 of 2009 is taken as the leading case. 2. Petitioner is working as a Head Clerk in the District Hospital, Kottayam. The Government issued orders by which control which was earlier being exercised by the Director of Health Services in respect of certain posts in the Medical Education Department was terminated and control over such posts were also brought within the control of the Medical Education Department. Employees in either departments were given option either to remain in the Health Services Department or opt for Medical Education Department or vice--verse as the case may be. 3. By Ext.P1 dated 6.12.2008, petitioner submitted her option for being sent to the Medical W.P ( C) Nos.23309 & 25438 of 2009 2 Education Department. It is seen that her option was accepted. But thereafter she sent Ext.P2 withdrawing her option. Ext.P2 is dated 13.3.2009. Ext.P3 reminder was sent to the 3rd respondent on 18.5.2009 and the withdrawal of the option submitted by the petitioner was recommended by the Director of Health Services as per Ext.P4 communication to the Government. But petitioner's option for the Medical Education Department has been treated as accepted and it is so shown in Ext.P5 as well. In other words, the request made by the petitioner for withdrawal of Ext. P1 option has not been accepted and hence the writ petition. 4. Petitioner in WPC No.25438 of 2009 is junior to the petitioner in WPC No.23309 of 2009. He is also in the Health Services Department and he had opted for the Medical Education Department. His option was accepted as per Ext.P2 which also shows the petitioner in WPC No.23309 as one whose option for the Medical Education Department has been accepted. Petitioner in WPC No.25438 of 2009 submits that though his option was W.P ( C) Nos.23309 & 25438 of 2009 3 accepted as per Ext.P2, thereafter respondents 5 and 6 are included in the list of optees for the Medical Education Department. Petitioner contends that respondents 5 and 6 had not submitted applications within time for option to the Medical Education Department and therefore the petitioner's option, which was accepted as per Ext.P2 should not have been changed. But as per Ext.P5, the petitioner is not included in the list of optees for the Medical Education Department but respondents 5 and 6 are seen included . This has been challenged in the writ petition. 5. If the issue could have been decided by accepting the withdrawal of option put forward by the petitioner in W.PC No.23309 of 2009 on one hand and acceptance of the option for the Medical Education Department submitted by the petitioner in WPC No.25438 of 2009 on the other hand, then there probably would not have been any residuary grievance. Learned Government Pleader points out that option once exercised cannot be permitted to be withdrawn. W.P ( C) Nos.23309 & 25438 of 2009 4 6. Ext.P4 in WPC No.23309 is a recommendation made by the Director of Health Services to the Government urging the latter to accept the withdrawal of option submitted by the petitioner. If the recommendation in Ext.P4 is accepted by the Government, then the petitioner Smt.R.Sudha could be retained in the Health Services Department and the consequent position of Head Clerk could be made available to the petitioner in WPC No.25438 of 2009. 7. It is pointed out that the Government had by a common order relating to several persons declined to accept the request of various categories of employees for cancellation of their option in view of the declaration already made while exercising option. 8. In my view, if there is any individual claim, made by any person for withdrawal of option and it is recommended by the Director of Health Services, then the Government will have to consider such request and the recommendation and pass a reasoned order. No such order has been passed on Ext.P1. W.P ( C) Nos.23309 & 25438 of 2009 5 In the result, there will be a direction to the 1st respondent in WPC No.23309 of 2009 to hear the petitioner and take a fresh decision on the petitioner's request for withdrawal of her option to be transferred to the Medical Education Department and take a decision thereon, within four weeks from the date of receipt of a copy of this judgment. Government shall take such decision untrammelled by what has been communicated in their communication dated 29.8.2009. If the Government decides to accept the recommendation contained in Ext.P4 in WPC No.23309 of 2009 then the consequent position which will become available in the Medical Education Department shall be filled up by accepting the request made by the petitioner in WPC No.25438 of 2009 and Ext.P5 in WPC No.25438 of 2009 shall be amended by including the name of Sri. R.Chandraprakash in the place of Smt.R.Sudha . Writ petitions are disposed of as above. (V.GIRI,JUDGE) ma W.P ( C) Nos.23309 & 25438 of 2009 6 W.P ( C) Nos.23309 & 25438 of 2009 7