IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI TUESDAY, THE 29TH JANUARY 2008 / 9TH MAGHA 1929 WP(C).No. 38310 of 2007(I) -------------------------- PETITIONER: ------------ MRS.REENMOL JOSEPH, W/O.V.K.GEORGE, AGED 37 YEARS, WORKING AS HEAD NURSE, ESI HOSPITAL, THOTTADA, RESIDING AT NO.4, ESI QUARTERS, THOTTADA P.O., KANNUR-7, KANNUR DISTRICT. BY ADV. SRI.R.SURENDRAN RESPONDENTS: ------------- 1. THE DIRECTOR OF INSURANCE MEDICAL SERVICES, DIRECTORATE OF INSURANCE MEDICAL SERVICES, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, LABOUR DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 3. THE SUPERINTENDENT, E.S.I. HOSPITAL, THOTTADA, KANNUR-7. BY GOVERNMENT PLEADER SRI. NANDAKUMAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/01/2008, ALONG WITH W.P.(C)S. 52, 63, 271, 290, 396, 797 AND 887 of 2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI, J ------------------- W.P.(C)s. 38310 of 2007 & 52, 63, 271, 290, 396, 797, 887 of 2008 -------------------- Dated this the 29th day of January, 2008 JUDGMENT Common issues are raised for consideration in these writ petitions and therefore, they are disposed of by a common judgment. 2. All these writ petitions were filed recently. They were admitted and interim orders were also passed. It was found that the issues which have been raised for consideration in these writ petitions require an expeditious determination. On consent of parties, the writ petitions were taken up for hearing. On hearing the learned counsel on either side, it was felt that the matter requires a re-consideration by the Government. Since a further consideration by the Government is deemed necessary, I propose to dispose of the writ petitions. Writ Petition No.38310/2007 is taken as the leading case for convenience. W.P.(C)s.38310/2007 and Connected Cases 2 3. Petitioners were promoted as Head Nurse with effect from 19.1.2001 as per Ext.P3 order. Their probation was also declared in the said post as per Ext.P4 dated 16.1.2006 by G.O.(P).No.145/06/Fin. Dated 25.3.2006. Recommendations of the pay Commission were accepted by the Government and orders were issued (herein after referred to as 'pay revision order'). As per clause 8 of the pay revision order, the existing ratio/higher grade and the revised ratio to various categories are indicated at the appropriate places under each Department in Annexure-12. It is made clear that the newly introduced/improved ratio promotion will have effect only from the date of order. As per Item 38 of Annexure, pay scale of Head Nurses is revised from Rs.5000-8150 to 9190-15510. It is further noted therein that the cadre strength of Head Nurses will be determined in the ratio of 1:4 between the Head Nurses and Staff Nurses Grade-I. Staff Nurses will be allowed higher grade in the scale of pay of Rs.8390-13270/- and the ratio between the Staff Nurses Grade-I and II will be W.P.(C)s.38310/2007 and Connected Cases 3 1:1. As per clause 53 of the pay revision order, revised scales will be effective from 1.7.2004, but the date of effect of revised ratio/higher grades will be the date of order itself. Thus going by clause 53, change in the ratio between Head Nurses and Staff Nurses as such will be effective from the date of the pay revision order. 4. The cadre strength for Nurses in the Insurance Medical Services is 328. Apparently, the ratio between Head Nurses and Staff Nurses under the earlier pay revision order was 1:2 and therefore, one out of every three was a Head Nurse. By the present pay revision order, the Staff strength of Nurses does not seem to have undergone change. Ratio between Head Nurses and Staff Nurses have been changed from 1:2 to 1:4 and this inter alia, results in the reduction of number of posts of Head Nurses. Taking 328 as the Staff strength among Nurses the number of posts of Head Nurses available as per the revised ratio brought into force under the existing pay revision order will have to be W.P.(C)s.38310/2007 and Connected Cases 4 calculated applying the percentage to the number of posts sanctioned for Staff Nurses Grade-I. An arithmetical determination on this issue may not be relevant at this stage. 5. Suffice it to say, that the Government felt that on implementation of the pay revision order, there will be reduction in the number of posts of Head Nurses. But the ratio as prescribed in the pay revision order will nevertheless have to be implemented. If the date of order is 25.3.2006 (or even 1.3.2006), it follows as a consequence that the ratio will have to be applied against the vacancies which arise in the cadre with effect from the date of order. But in the case of the petitioners, they had already been promoted as Head Nurses well prior to the date of pay revision order. In fact the latest date in so far as some of the petitioners herein are concerned, is 21.6.2005, whereas in some cases, petitioners were promoted as Head Nurses as early as in 2001 and in some of these cases their W.P.(C)s.38310/2007 and Connected Cases 5 probation has also been declared. On revised scales being applicable under the pay revision order, they were fitted into the scale of pay of Rs.9190-15510 and have been drawing salary accordingly. 6. While so, Director of Insurance of Medical Services issued the order impugned in all these cases dated 10.12.2007. The relevant portion of the same reads as follows:- As per G.O.(P).145/06/Fin.dated 25.3.2006, a higher grade viz, “Grade-I” has been sanctioned to Staff Nurse of Insurance Medical Services Department in the ratio 1:1. The ratio promotion to the post of Head Nurse has also been revised to 1:4 between Head Nurse and Staff Nurse Grade- I. Accordingly among the total strength of nurses ie., 328, 164 will be Grade-I and 164 will be Grade-II. 1/5th of 164 Staff Nurse Grade-I ie, 32 will be Head Nurse. Vide the Order read as second above, Government have ordered accordingly and have W.P.(C)s.38310/2007 and Connected Cases 6 authorized the Director of Insurance Medical Services to make district wise re- arrangement of the posts. The excess number of Head Nurses in position over and above the permissible number as per the ratio prescribed in the Government order read as first above will be reverted.” 7. Consequent thereupon, all the petitioners were reverted to the post of Staff Nurse Grade-I on the premise that going by the existing permissible ratio between Staff Nurse Grade-I and Head Nurses in the department, they are in excess and consequently are liable to be reverted as the Staff Nurse Grade-I. The impugned order seems to be a consequence of G.O.(MS). No.164/07/LBR. Dated 7.12.2007. Apparently, the Director had only implemented the order passed by the Government, G.O.(MS).No.164/07/LBR. Dated 7.12.2007, which is also made available for perusal. W.P.(C)s.38310/2007 and Connected Cases 7 8. The orders of reversion in so far as the individual petitioners are concerned have been stayed by this Court. Petitioners therefore continue as Head Nurses. 9. It is contended on behalf of the petitioners that they have been promoted as Head Nurses in the course of regular promotion effected in the service well prior to the date of issuance of pay revision order. In many of these cases, probation has also been declared. If in the course of enforcing the pay revision order, there comes about a change in the ratio between Staff Nurses and Head Nurses, the change should be applied in such a manner that promotions regularly effected prior to the date of the order are not affected. There is a change in the scale of pay applicable to Head Nurses and Staff Nurses. Post of Head Nurse is a promotion post to that of the Staff Nurse. Appointment to the post of Head Nurses, in the case of the petitioners was by way of cadre promotion and in accordance with special rules governing the service. If that be so, a re-arrangement W.P.(C)s.38310/2007 and Connected Cases 8 of the post, as is purported to be done under the Government Order dated 7.12.2007 and the impugned order of the Director of Insurance Medical Services, is illegal because it entails a reversion of a person who has been regularly promoted against a substantive vacancy, existing as per the ratio prevailing prior to the pay revision order in question. This is illegal and unconstitutional, contend the petitioners. 10. Learned senior Government Pleader submits that a change in the ratio as between the Head Nurses and Staff Nurses is provided in the pay revision order and there is no challenge to the pay revision order as such. There is a revised scale made applicable to the Head Nurses, which is higher than that of Staff Nurse Grade- I. After contemporaneous revision of scales, Government thought it fit to change the ratio between the Head Nurses and Staff Nurses Grade-I (and also provide for Grade-I and II posts among Staff Nurses). W.P.(C)s.38310/2007 and Connected Cases 9 The power of the Government in that behalf cannot be questioned. 11. A person who is included in the rank list of candidates, published by the PSC, for the post of Staff Nurse in the Insurance Medical Services department, Kannur District, has got himself impleaded in Writ Petition No.290/2008. 12. I heard the learned counsel for the petitioners, learned senior Government Pleader and the learned counsel for the additional respondent in W.P.(C). 290/2008. 13. There are certain facts which could be re- capitulated. Firstly all the petitioners were regularly promoted to the post of Head Nurses. Promotion of the petitioners and appointment to the post of Head Nurse was against substantive vacancies. It is not alleged either in the Government Order dated 7.12.2007 or in W.P.(C)s.38310/2007 and Connected Cases 10 the impugned order that the petitioners' promotions were irregular in the sense that it was in excess of permissible ratio as prevailing under the earlier pay revision order. In many of these cases, their probation has also been declared. Existing pay revision order also maintains a distinction between Staff Nurses Grade-I and II and Head Nurses. It may not be possible for the Government to provide otherwise as well in as much as special rules for the subordinate services provide Head Nurse as a promotion post to that of a staff nurse. In so far as the petitioners are concerned, they were promoted as Head Nurses well prior to 25.3.2006, the date of pay revision order, and consequentially they are entitled to be protected in the said post. 14. While referring to those aspects, it will also have to be noted that the Government is entitled to revise the ratio amongst Staff Nurses in the Insurance Medical Department and if by way of the revision, number of post in Head Nurses undergo reduction, such reduction W.P.(C)s.38310/2007 and Connected Cases 11 may not afford any cause of action for persons who otherwise have been promoted as Head Nurses. But if persons have been promoted irregularly in the sense that they were promoted in excess of cadre strength available to Head Nurses, then it is open to the Government to rectify their mistake. But a reduction by reason of a revision in the ratio brought about by the pay revision order shall not result in a regular promotion being cancelled or a promoted person being reverted purely as a consequence of the revised ratio. Apparently that is what happened in this case. While a revised ratio was brought about by the pay revision order, Government should have made it clear that the same shall not affect the rights of persons who were regularly promoted as Head Nurses against substantive vacancies in the said post available and existing, prior to the date of enforcement of the pay revision order. If it is found that by enforcing the revised ratio, several persons functioning as Head Nurses are in excess of such revised ratio, it would always be open to the W.P.(C)s.38310/2007 and Connected Cases 12 Government to declare that an equivalent number of posts be treated as supernumerary without there being an enhancement of cadre strength as such. Such consequential steps are always open to be taken by the Government. But as I have already noted enforcement of the revised ratio between Staff Nurses and Head Nurses especially as a consequence of providing Grade I and II among Staff Nurses shall not result in regular promotions to the post of Head Nurse being cancelled and shall not result in persons who were regularly promoted as Head Nurses, being reverted as Staff Nurse. 15. It is also relevant in this context to note that both under the earlier pay revision order and current pay revision order, there was difference in the scale of pay applicable to the Head Nurses. Therefore, the impugned order by which the petitioners were brought to the post of Staff Nurse Grade-I also resulted in reduction of their scale of pay. After all, even if the impugned order W.P.(C)s.38310/2007 and Connected Cases 13 is ultimately upheld, as being necessary in the context of enforcing the revised ratio brought about by the pay revision order, all the promotees would be entitled to pay protection. It is therefore, that the Government should re-consider the issue brought about by the revision in the ratio between Head Nurses and Staff Nurse in the Insurance Medical Department. 16. In the result writ petitions are disposed of in the following terms: (i). Government shall pass fresh orders as regards the manner in which the revised ratio of 1:2 between Head Nurses and Staff Nurses in the Insurance Medical Department as provided under Rule 38 of Annexure-12 to the pay revision order is to be implemented, taking note of the observations made above and with particular reference to the fact that persons, who were regularly promoted aganst substantive vacancies in the post of Head Nurse prior to the enforcement of pay revision order dated 25.3.2006, are not liable to be reverted from the said post. W.P.(C)s.38310/2007 and Connected Cases 14 (ii). On enforcement of the revised ratio, if the Government finds that some persons were promoted as Head Nurse, prior to 25.3.2006, in excess of the permissible ratio of 1:2 between Head Nurse and Staff Nurse as was available under the earlier pay revision order, G.O.(P).3098 dated 25.11.1998, then appropriate directions may be issued to provide for the manner in which persons so promoted irregularly shall be accommodated in the post of Staff Nurse Grade-I. (iii). In doing so, Government should bear in mind the fact that if persons have been promoted by way of regular cadre promotions and their probation in the promoted post has also been declared, then pay of such promoted persons are eligible to be protected and is not liable to be reduced as such. If necessary, it is open to the Government to either enforce a revised ratio prospectively or provide a supernumerary post to tide over the situation brought about by the promotions effected prior to the date of enforcement of pay revision order. (iv). If the Government proposes to pass any order which will detrimentally affect the interest of the W.P.(C)s.38310/2007 and Connected Cases 15 petitioners herein, then the petitioners or authorized representatives shall be given notice and shall be heard before revised orders are passed by the Government in the manner aforementioned. 17. Entire process as mentioned above shall be completed within a period of four months from the date of receipt of a copy of this judgment. 18. Interim orders already passed in these cases shall continue to remain in force till fresh orders are passed by the Government in the manner aforementioned and communicated to the petitioners. V.GIRI, Judge mrcs