IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 38310 of 2007(I)
1. MRS.REENMOL JOSEPH, W/O.V.K.GEORGE,
... Petitioner
Vs
1. THE DIRECTOR OF INSURANCE MEDICAL
... Respondent
2. STATE OF KERALA, REPRESENTED BY
3. THE SUPERINTENDENT, E.S.I. HOSPITAL,
For Petitioner :SRI.R.SURENDRAN
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice V.GIRI
Dated :29/01/2008
O R D E R
V.GIRI, J
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W.P.(C)s. 38310 of 2007 & 52, 63, 271, 290,
396, 797, 887 of 2008
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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