IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 20TH NOVEMBER 2008 / 29TH KARTHIKA 1930 WP(C).No. 27936 of 2008(A) -------------------------- PETITIONER(S): --------------- K.T.GEETHA, UPPER DIVISION CLERK, RAMA VARMA DISTRICT AYURVEDA HOSPITAL, THRISSUR. BY ADV. SRI.T.A.SHAJI SMT.S.SHEEJA KUMARY(AYOOR) RESPONDENT(S): --------------- 1. THE DISTRICT MEDICAL OFFICER, INDIAN SYSTEMS OF MEDICINE, THRISSUR. 2. THE DIRECTOR, INDIAN SYSTEMS OF MEDICINE THIRUVANANTHAPURAM 3. THRESSIAMMA JOSEPH, TYPIST, OFFICE OF THE DISTRICT MEDICAL OFFICER, ISM, THRISSUR. 4. V.F.DEENA, NURSE GRADE - II, RAMA VARMA DISTRICT AYURVEDA HOSPITAL, THRISSUR. 5. THE JOINT DIRECTOR (VIGILANCE), INDIAN SYSTEMS OF MEDICINE, THIRUVANANTHAPURAM. BY ADV. SRI.SAJAN VARGHEESE K. FOR R4 SRI.LIJU. M.P FOR R4 SRI.M.UNNIKRISHNA MENON FOR R3 SRI.K.M.JAMALUDHEEN FOR R3 SMT.LATHA PRABHAKARAN FOR R3 BY ADV. GOVERNMENT PLEADER SRI.P.NANDAKUMAR FOR R1 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.N.RAVINDRAN, J. ------------------------------- W.P.(C) No.27936 of 2008 ------------------------------- Dated this the 20th November, 2008. J U D G M E N T Heard Sri.T.A.Shaji, the learned counsel appearing for the petitioner, Sri.P.Nandakumar, the learned Government Pleader appearing for respondents 1, 2 and 5, Sri.K.M.Jamaludheen, the learned counsel appearing for third respondent and Sri.Sajan Varghese, the learned counsel appearing for the fourth respondent. 2. The petitioner is presently working as Upper Division Clerk in the Rama Varma District Ayurveda Hospital, Thrissur. She is the wife of Late Dr.T.V.Aravindakshan who died- in-harness on 10.12.1997, while on duty at Sabarimala. The petitioner applied for appointment under the compassionate appointment scheme and was appointed as Lower Division Clerk in the office of the District Medical Officer, Indian Systems of Medicine, Thrissur, on 13.12.1999. The petitioner is a resident of Pookode in Alathur Village, Thrissur Taluk. The petitioner was W.P.(C) No.27936/2008 2 later promoted as Upper Division Clerk. After her promotion, she applied for allotment of one of the Nurses quarters that was lying vacant in the Rama Varma District Ayurveda Hospital, Thrissur. The application was submitted on 20.5.2003 and on that application, Quarter No.429/4 was allotted to the petitioner on 8.8.2003 and she occupied it on 15.9.2003. During the time of general transfer, the petitioner was transferred out to Guruvayoor. She challenged the order of transfer in this Court. Pursuant to the directions issued by this Court, the Director, Indian Systems of Medicine, issued Ext.P1 order dated 29.7.2008 transferring the petitioner back to Thrissur. The petitioner accordingly rejoined duty at Thrissur on 31.7.2008. 3. While matters stood thus, the third respondent who is working as Typist in the office of District Medical officer, Indian Systems of Medicine, Thrissur, applied for the allotment of a Nurse's quarter lying vacant in the Rama Varma District Ayurveda Hospital, Thrissur, since 30.4.2008. It was allotted to the third respondent on 6.5.2008 and she occupied it on W.P.(C) No.27936/2008 3 14.5.2008. Thereafter, the fourth respondent who was transferred from Guruvayoor to Thirssur and posted as Nurse in the Rama Varma District Ayurveda Hospital, joined duty at Thrissur on 3.6.2008. The fourth respondent's husband is employed in the Indian Navy and she has got two children aged 3 ½ and 1 ½ years respectively. Though she owns a residential house, it is situated 27 Kms. away at Nambhazhikkad, Thrissur. After joining duty as Nurse, she submitted Ext.R4(a) application dated 4.6.2008, to the Chief Medical Officer of the hospital followed by Ext.R4(b) application dated 15.7.2008 to the District Medical Officer of Health, Indian Systems of Medicine, Thrissur. Based on the fourth respondent's request, the District Medical Officer issued Ext.P3 notice dated 28.7.2008 to the petitioner calling upon her to vacate the Nurse's quarters allotted to her, within 15 days. When the petitioner did not comply with the said direction, Ext.R4(c) letter dated 12.8.2008 was sent reminding her of her obligation to vacate the quarters. W.P.(C) No.27936/2008 4 4. On receipt of Ext.P3 notice, the petitioner submitted Ext.P4 representation dated 31.8.2008 to the Director of Indian Systems of Medicine, wherein she pointed out that before the general transfer for the year 2008 was issued, one of the Nurses quarters that was lying vacant since 30.4.2008 was allotted to the third respondent on 6.5.2008 and she occupied it on 18.5.2008. In Ext.P4, she also pointed out that the quarters that lying vacant should have been allotted only after the general transfer of Nurses was effected and that too, after being satisfied that it is not required by the Nurses posted in the hospital. In Ext.P4, the petitioner requested the Director, Indian Systems of Medicines, to consider her case sympathetically and to permit her to continue in the quarters allotted to her. 5. While the said request was pending, the District Medical Officer, Indian Systems of Medicines, issued Ext.R4(d) order dated 5.9.2008 allotting the quarters presently occupied by the petitioner to fourth respondent and simultaneously issued Ext.P5 letter dated 5.9.2008 directing the petitioner to forthwith W.P.(C) No.27936/2008 5 vacate the quarters. The petitioner thereupon submitted Ext.P6 representation dated 9.9.2008 before the Joint Director, Indian Systems of Medicine, Thiruvananthapuram, requesting that she may be permitted to continue to occupy the quarters. This Writ Petition was thereafter filed on 18.9.2008 challenging Exts.P3 and P5 orders and praying for a writ in the nature of mandamus commanding respondents 1 and 2 to permit her to continue to occupy Quarter No.429/4 of Rama Varma District Ayurveda Hospital, Thrissur, so long as she continues to work in the said hospital. 6. The learned counsel appearing for the petitioner contends that as the petitioner is working as Upper Division Clerk in the Rama Varma District Ayurveda Hospital, Thrissur, she is entitled to preference in the matter of allotment of quarters and that the third respondent, who is working as Typist in the office of the District Medical Officer, Indian Systems of Medicines, Thrissur, cannot claim such preference. The petitioner does not however dispute the entitlement of the fourth respondent for the W.P.(C) No.27936/2008 6 allotment of a quarters. The petitioner submits that as she does not have her own house, as per the rules governing the allotment of quarters, she is entitled to continue to occupy the Nurse's quarters in preference to the third respondent. 7. The third respondent has filed a counter affidavit contending inter alia that though she owns a house at Payyanam, near Peechi, which is more than 25 Kms. away from the office where she is presently working, as a consequence of the accident in which she was involved, she is not in a position to travel every day. It is submitted that these circumstances compelled her to apply for allotment of quarters and it was taking note of her physical disability that the District Medical Officer allotted a vacant quarter to her on 6.5.2008 and she occupied it on 14.5.2008. The third respondent also contends that the petitioner owns a house at Varakkara near Amballoor which is less than 15 kms. away from her office. The fourth respondent has filed a counter affidavit in which it is stated that as a Nurse attached to the hospital, she is entitled for the allotment of W.P.(C) No.27936/2008 7 quarters and that as the Nurse on duty, it is imperative that her services are available at short notice in the hospital. 8. The petitioner has filed a reply affidavit disputing the third respondent's averment that she owns a house at Varakkara near Amballoor. The petitioner has also produced Ext.P7 certificate issued by the Village Officer, Amballoor, certifying that the petitioner does not own a house in that village and that the residential house and appurtenant land at Amballoor belong to her in-laws. 9. The first respondent has filed a statement dated 24.9.2008 pointing out that the petitioner was allotted a quarter way back in the year 2003, as it was lying vacant, subject to the condition that if it is required for a Nurse, she will have to vacate it. It is stated that when the fourth respondent made a request for the allotment of a Nurse's quarter, as the Staff Nurse attached to the hospital, orders were issued directing the petitioner to vacate the quarters occupied by her. As regards the allotment of a Nurse's quarters to the third respondent, it is W.P.(C) No.27936/2008 8 stated that the Nurses quarter which was lying vacant from 30.4.2008 onwards was allotted to third respondent, as she is unable to travel long distance due to the injuries sustained by her in a motor accident. The District Medical Officer has produced along with the statement, Ext.R1(a) Circular dated 5.6.1992, issued by the Director, Indian Systems of Medicines, governing the allotment of quarters. 10. I have considered the submissions made at the Bar by the learned counsel on either side. The entitlement of the fourth respondent for the allotment of quarters is not disputed by the petitioner. In fact, the petitioner was allotted a quarter ear marked for Nurses as the Staff Nurses earlier working in the hospital did not require the quarters. Such allotment was made on the specific condition that as and when a Nurse requires the quarters, the petitioner will be bound to vacate it. The allotment to fourth respondent cannot therefore be questioned. Then, the only question is whether as between the petitioner and the third respondent, who is entitled to claim preference. W.P.(C) No.27936/2008 9 11. The petitioner contends that as she is working in the hospital, she is entitled to preference in the matter of allotment of quarters. She also contends that the third respondent was alloted a quarters even before the general transfer orders were issued and without waiting for transfer of Nurses to take effect. In short, the petitioner's contention is that Nurse's quarters which became vacant on 30.4.2008 should not have been allotted before the transfer order of Nurses was issued and that the District Medical Officer should have waited for the transfers to take effect and alloted the quarters, only if it was not required by any of the Nurses transferred to and posted in Rama Varma District Ayurveda Hospital, Thrissur. It is pointed out that till the fourth respondent was transferred and posted at Thrissur, no one of the Nurses who were working in that hospital had asked for the allotment of quarters, and, therefore, the District Medical Officer should have been more vigilant in allotting the Nurse's quarters that fell vacant on 30.4.2008 to the third respondent. W.P.(C) No.27936/2008 10 12. On the other hand, the third respondent disputes the petitioner's entitlement on the ground that she owns a residence at Varakkara near Amballoor. The third respondent stakes her claim for allotment of quarters on the ground that as a result of the inuries sustained by her in a motor accident and as a result of a fall from the bus, she is not in a position to undertake long journeys. She also states that bus services to her place of residence are also not frequent. 13. The rules governing allotment of quarters stipulates that quarters should not be allotted to employees who have their own residence within a radius of 15 kms. from the place where they are employed. Going by the pleadings, it is evident that the third respondent has her own residence while the petitioner does not. The petitioner has been continuing in the Nurses quarters that was allotted to her as early as in the year 2003, for the past five years. The fact that she is a widow is not in dispute. Her husband was a former Doctor in the very same hospital and he died while in service on 10.12.1997 at W.P.(C) No.27936/2008 11 Sabarimala during the pilgrimage season. Her appointment was on compassionate grounds. As a widow and as an employee of the hospital who does not have her own residence, she was allotted quarters. Now, because of the allotment made to fourth respondent, she is asked to vacate the quarters allotted to her. From the materials on record, it is evident that the said situation arose only because of the allotment of a vacant quarters to the third respondent. The third respondent admittedly has her own house at Payyanam near Peechi in Thrissur District, which even according to the third respondent is within commutable distance. 14. While the petitioner is working in the hospital, the third respondent is working in the office of the District Medical Officer, Indian Systems of Medicines, at Thrissur. The petitioner is an Upper Division Clerk attached to the hospital. On the facts situation of the case, I am of the considered opinion that the petitioner has a better claim than the third respondent for the allotment of quarters in the Rama Varma District W.P.(C) No.27936/2008 12 Ayurveda Hospital, Thrissur. The present stalemate has arisen because, as rightly pointed out by the learned counsel for the petitioner, without awaiting for the general transfer order, a quarters that was lying vacant since 30.4.2008 was allotted to the third respondent on 6.5.2008. In my opinion, the respondents ought to have been more vigilant in the matter of allotment of Nurse's quarters to third respondent. They ought to have waited till the general transfer order was issued and alloted it only after ascertaining whether the Nurses transferred to the hospital are desirous of having a quarter allotted to them. In the instant case, such a transfer took place and the fourth respondent was posted in the hospital by order passed on 24.5.2008. She joined duty on 3.6.2008. Three weeks prior to that date, the third respondent occupied the nurses quarters allotted to her. On an over all view of the situation, I find merit in the submission of the learned counsel for the petitioner that if at all the fourth respondent had to be accommodated, it has to be W.P.(C) No.27936/2008 13 in the quarters allotted to the third respondent. In that view of the matter, I dispose of the Writ Petition with a direction to the District Medical Officer, Indian Systems of Medicines, to cancel the allotment of quarters made to the third respondent and allot it to the fourth respondent. Necessary steps in that regard shall be taken within one month from today. The petitioner shall be entitled to continue in the quarters presently occupied by her only so long as it is not required for allotment to any of the Nurses attached to the Rama Varma District Ayurveda Hospital, Thrissur. P.N.RAVINDRAN, JUDGE nj.