IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 22ND JUNE 2010 / 1ST ASHADHA 1932 WP(C).No. 7968 of 2010(U) -------------------------------------- PETITIONER(S): ------------------------- 1. DR. N. MEENAKUMARI, ASSISTANT INSURANCE MEDICAL OFFICER, E.S.I HOSPITAL, PARIPPALLY, KOLLAM. 2. S. MOHANAN, U.D CLERK (HIGHER GRADE), E.S.I HOSPITAL, PARIPPALLY, KOLLAM. 3. K. VIJAYAKUMARI, NURSING ASSISTANT, E.S.I HOSPITAL, PARIPPALLY, KOLLAM. 4. N. CHANDRAN, NURSING ASSISTANT, E.S.I. HOSPITAL, PARIPPALLY, KOLLAM. 5. JAMEELA.S, NURSING ASSISTANT, E.S.I. HOSPITAL, PARIPPALLY, KOLLAM. 6. A. NAZEEM BEEVI, NURSING ASSISTANT, E.S.I. HOSPITAL, PARIPPALLY, KOLLAM. 7. P. SUDHARMA BABY, JUNIOR LAB ASSISTANT, E.S.I. HOSPITAL, PARIPPALLY, KOLLAM. 8. P. SUMATHUKUTTY AMMA, HOSPITAL ATTENDER GRADE-II, E.S.I. HOSPITAL, PARIPPALLY, KOLLAM. 9. G. SREEPATHY, HOSPITAL ATTENDER GRADE-II, E.S.I. HOSPITAL, PARIPPALLY, KOLLAM. BY ADVS. SRI.ELVIN PETER P.J., SRI.POOJA SURENDRAN. Kss ..2/- ...2..... WPC.NO.7968/2010 U RESPONDENT(S): ------------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, LABOUR AND REHABILITATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF INSURANCE MEDICAL SERVICES, THYCAUD, THIRUVANANTHAPURAM. 3. EMPLOYEES STATE INSURANCE CORPORATION, PANCHADEEP BHAVAN, NEW DELHI, REPRESENTED BY ITS DIRECTOR GENERAL. 4. THE MEDICAL SUPERINTENDENT, E.S.I HOSPITAL, PARIPPALLY, KOLLAM. *ADDL.R5 IMPLEADED: R5. S.BABU, UPPER DIVISION CLERK, OFFICE OF THE DEPUTY DIRECTOR (HOMOEO) INSURANCE MEDICAL SERVICES, KOLLAM, RESIDING AT ESI QUARTERS NO.3, POLAYATHODE, KOLLAM - 1. (*ADDL.R5 IS IMPLEADED AS PER ORDER DTD. 21/05/2010 IN IN.A.NO.6033/2010) R1 & R2 BY GOVERNMENT PLEADER SRI. NANDAKUMAR R3 & R4 BY ADV. SRI.P.SANKARANKUTTY NAIR ADDL.R5 BYADVS. SRI.S.P.ARAVINDAKSHAN PILLAY, SMT.N.SANTHA, SRI.S.A.ANAND, SRI.PETER JOSE CHRISTO. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/06/2010 ALONG WITH WPC NO. 9529 OF 2010 AND WPC NO. 11466 OF 2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.7968/2010 U APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE ORDER G.O. DTD. 15/10/2009 ALONG WITH THE TERMS OF ABSORPTION ISSUED BY THE GOVERNMENT. P2: COPY OF THE ORDER G.O. DTD. 1/1/2010 ISSUED BY THE GOVERNMENT. P3: COPY OF THE COMMUNICATION DTD. 4/2/2010 ISSUED BY THE 2ND RESPONDENT. P4: COPY OF THE ORDER DTD. 23/12/2005 IN I.A.NO.19098/2005 IN WPC.NO. 35873/2005 OF THIS HON.COURT. RESPONDENT'S EXHIBIT & ANNEXURE: R3: COPY OF THE MINUTES OF THE MEETING OF COMMITTEE HELD ON 16/04/2010 IN CONNECTION WITH THE HANDING OVER. ANNEXURE 1: COPY OF THE ORDER NO.E1 - 2077/2010/RDD/IMS/SZ/KOLLAM DTD. 31/03/2010. /TRUE COPY/ P.A.TO JUDGE Kss ANTONY DOMINIC, J. ------------------------------- W.P.(C) No. 7968, 9529 & 11466 of 2010 ------------------------------- Dated this the 22nd day of June, 2010 J U D G M E N T Petitioners in W.P.(C) Nos.7968 & 11466 of 2010 are the employees working in the E.S.I. Hospital, Parippally, and the petitioners in W.P.(C) No.9529 of 2010 are the employees of E.S.I.Hospital, Ezhukone. 2. Facts of the case are that the aforesaid E.S.I. Hospitals were functioning under the Director of Insurance Medical Services, 2nd respondent in these writ petitions. While so, pursuant to Ext.P1 order, E.S.I. Hospital at Udyogamandal, which was also under the control of the 2nd respondent was taken over by the E.S.I. Corporation. This order provided that opportunity will be given to the employees of the Hospital to opt for absorption under the ESI Corporation, subject to the other terms and conditions mentioned at the order itself. Subsequently, Ext.P2 order was issued by the Government of Kerala, according sanction to the Director of Insurance Medical Services to hand over ESI hospitals at Parippally and Ezhukone W.P.(C) Nos.7968, 9529 & 11466 of 2010 2 to the ESI Corporation, with effect from 1.1.2010, for starting a Medical College and Dental College respectively, subject to the terms and conditions of Ext.P1 order, dated 15.10.2009, whereby, ESI hospital at Udyogamandal was taken over by the ESI Corporation. It was ordered that the Director is authorised to hand over the hospitals to the ESI Corporation, after observing all necessary formalities and requirements. On the issuance of Ext.P2, these cases were filed, alleging that the handing over of above said hospitals to the ESI Corporation was being deliberately delayed to be effected after 31.3.2010, in order to ensure that petitioners attain the age of superannuation and retire from service on 31.3.2010. 3. While considering the writ petitions, this Court had passed the interim orders enabling the petitioners to continue in service. Subsequently, ESI Hospitals at Parippally and Ezhukone were taken over by the ESI Corporation with effect from 16.4.2010 and 20.4.2010 respectively. Case of the petitioners is that since the hospitals were handed over in W.P.(C) Nos.7968, 9529 & 11466 of 2010 3 pursuance to Ext.P2 Government Order, dated 1.1.2010, with effect from 1.1.2010, their entitlement to continue under the ESI Corporation, subject to the terms of Ext.P1 referred to above, shall be recognized with effect from 1.1.2010 and on that basis, their future should be decided. It is stated that, if so, they will be entitled to continue till they attain 60 years and on the other hand, they would have to retire on attaining the age of 55 years. 4. The stand taken by the ESI Corporation and the additional respondent in W.P.(C) No.7968/2010 is that Ext.P2 is only an order authorising the Director of Insurance Medical Services to handover the ESI Hospitals at Parippally and Ezhukone to the ESI Corporation. According to them, in pursuance to Ext.P2 order, hospitals at Parippally and Ezhukone were handed over only with effect from 16.4.2010 and 20.4.2010 respectively. Therefore, it is argued that their liability is only in respect of the employees who were on the rolls of the hospitals as on the date of take over and that as the petitioners W.P.(C) Nos.7968, 9529 & 11466 of 2010 4 have attained the age of superannuation on 31.3.2010, the petitioners are not entitled to the benefit of absorption, as provided in Ext.P1 referred to above. 5. In the light of the above controversy, the only question which requires to be examined is whether the take over of the hospitals at Parippally and Ezhukone is with effect from 1.1.2010, as contended by the petitioners, or whether it is effective from the date on which the same were taken over by the ESI Corporation, as contended by the respondents. 6. By Ext.P2 order, Government had accorded sanction to the Director of Insurance Medical Services to hand over ESI hospitals at Parippally and Ezhukone to the ESI Corporation, with effect from 1.1.2010. It is a fact which is not disputed by the petitioners also, that the hospitals were actually handed over and taken over only with effect from 16.4.2010 and 20.4.2010 respectively. The terms of absorption as stated in Ext.P1, provides that once the hospitals are taken W.P.(C) Nos.7968, 9529 & 11466 of 2010 5 over, employees may be allowed to exercise option for absorption into ESI Corporation or for repatriation to the State Government. Freedom is also given to the Corporation to accept or reject the options to be thus exercised. It further provides that if option is accepted, the employee exercising the option shall resign from the State Government service and that his absorption in ESI Corporation will take effect from the date to be decided by the ESI Corporation and the State Government. There is no provision in Ext.P1 enabling the employees to continue in service, even after attaining the age of superannuation of 55 years, till time is ripe for them to exercise option. Therefore, irrespective of the effective date from which the hospitals are taken over by the ESI Corporation, as far as the employees are concerned, those who are on the rolls of the hospitals on the date of take over, will have a right to exercise their option, and such employees will have to resign from the State Government service. Further, in the case of those whose options are exercised, the effective date of absorption will W.P.(C) Nos.7968, 9529 & 11466 of 2010 6 depend upon the date to be decided by the ESI Corporation and the State Government. In such a situation, even the possibility of an employee who has exercised his option attaining the age of superannuation and retiring from service before the effective date of absorption to be decided by the Corporation and the Government also cannot be ruled out. All these indicate that a person can exercise option for absorption should be on the rolls of the hospital, as on the date of take over. If he is not an employee, on the date on which the option is exercised, he cannot resign from service, as contemplated under clause (3) of Ext.P1, in order to be absorbed into the services of the ESI Corporation on the date to be decided by the Government and the ESI Corporation. This, necessarily, cannot apply to the petitioners, for the reason that even prior to taking over of the hospitals, they had ceased to be Government employees. Therefore, their claim that irrespective of the date of take over, and their attaining the age of superannuation, the right to seek absorption into ESI Corporation should be determined, with W.P.(C) Nos.7968, 9529 & 11466 of 2010 7 reference to 1.1.2010, as ordered in Ext.P2, has no force and cannot be accepted. Therefore, these writ petitions are only to be dismissed. I do so. Needless to say that the petitioners who have continued in service beyond 31.3.2010, on the basis of the interim orders passed by this Court, shall be paid their salary and other allowances, although the period cannot count for their terminal benefits. ANTONY DOMINIC, JUDGE. nj.