Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN MONDAY, THE 31ST DAY OF OCTOBER 2022 / 9TH KARTHIKA, 1944 WP(C) NO. 13302 OF 2022 PETITIONER: SMITHA E AGED 44 YEARS X-RAY TECHNICIAN/ RADIOGRAPHER, HOSPITAL MANAGEMENT COMMITTEE, DISTRICT HOSPITAL BURNASSERY P.O., KANNUR DISTRICT-670 017 BY ADVS. P.M.PAREETH AISWARYA VENUGOPAL NAJEEB P.S RESPONDENTS:
1 DISTRICT PANCHAYATH KANNUR, REPRESENTED BY ITS SECRETARY, THALAP, KANNUR DISTRICT-670 002 2 HOSPITAL MANAGEMENT COMMITTEE, (HMC), DISTRICT HOSPITAL, REPRESENTED BY ITS MEMBER SECRETARY, AYIKKARA GOVERNMENT HOSPITAL ROAD, BURANSSERY P.O., KANNUR DISTRICT-670 017 3 SUPERINTENDENT, DISTRICT HOSPITAL, REPRESENTED BY ITS MEMBER SECRETARY, (HMC), AYIKKARA GOVERNMENT HOSPITAL ROAD, BURANSSERY P.O., KANNUR DISTRICT-670 017 4 PRESIDENT, DISTRICT PANCHAYATH AND CHAIR PERSON, HOSPITAL MANAGEMENT COMMITTEE (HMC), GOVERNMENT HOSPITAL , BURANSSERY P.O., KANNUR DISTRICT-670 017 BY ADVS. C.KRISHNAN(KANNUR) C.LEENA
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.10.2022, THE COURT ON 31.10.2022 DELIVERED THE FOLLOWING:
ANU SIVARAMAN, J.
= = = = = = = = = = = = = = = W.P.(C).No.13302 of 2022 = = = = = = = = = = = = = = = = Dated this the 31st day of October, 2022
JUDGMENT
1. This writ petition is filed seeking the following reliefs:-
“1)A writ of certiorari or other appropriate writ direction or order calling for the records leading to Exhibit P3 and quash the same as against the petitioner. 2)A declaration to the effect that termination of the petitioner alone after retaining similarly placed 17 juniors of the petitioner is illegal, arbitrary and ab initio void. 3)A direction to the third respondent to reinstate the petitioner into service forthwith.”
2. Heard the learned counsel for the petitioner, the learned Government Pleader as well as the learned counsel appearing for respondents 1 and 4.
3. It is submitted that the petitioner had been working as X-Ray Technician/Radiographer in the District Hospital, Kannur from
1.4.2007. It is contended that she joined duty on 1.11.2006 after undergoing a due selection process, including interview. Thereafter, she was retrenched and reappointed on 1.4.2007 and is continuing without a break. Exhibit P2 is an experience certificate dated 30.6.2014 stating that the petitioner is working as Radiographer under the Hospital Management Committee from 1.4.2007. It is submitted that the petitioner was informed by Exhibit P3 that her services stand terminated with effect from 31.3.2022. The petitioner submits that several persons, who have been appointed after the petitioner's engagement, are permitted to continue while the petitioner
alone is discriminated against. It is contended that even if there is a necessity to disengage any of the temporary employees, the petitioner, who has been working since 2007, ought to have been retained and the other employees who have much lesser years of service should have been retrenched. It is contended that the decision taken by the Hospital Management Committee to retrench the services of the petitioner is, therefore, completely arbitrary and unsustainable.
4. A counter affidavit has been filed on behalf of respondents 1 and 4 stating that the petitioner has been working as X-Ray
Technician under the 2nd respondent and the Hospital Management Committee had reviewed the requirement of the employees and had found that the services of two drivers and
one X-ray Technician is in excess of the requirement. It is submitted that there are 17 temporary employees working under the Hospital Management Committee. However, none of them are X-Ray Technician. It is submitted that since one post of X-Ray Technician was found to be in excess, the petitioner's services had been terminated and all the other allegations raised in the writ petition are incorrect. It is further contended that in view of the fact that the petitioner is only a temporary employee and since the Hospital Management Committee is not in a position to continue the services of the petitioner for the reason of financial stringency, the petitioner cannot insist that her services should be continued.
5. A reply affidavit has been placed on record by the petitioner. It is stated that there are temporary Radiographers working in the hospital as X-Ray Technicians, CT Technicians etc. and that they
are far junior to the petitioner. It is contended that the petitioner ought to have been retained in service in preference to the above persons who are far junior. It is further contended that since the petitioner's appointment was as a Radiographer and since the Superintendent had required the National Health Mission (NHM for short) to make available the services of two Radiographers, it is clear that there is necessity for such staff in the hospital.
6. The 3rd respondent has also placed a counter affidavit on record stating that the Hospital Management Committee in its meeting
held on 8.2.2022 had reviewed the requirement of staff and had
found that there is paucity of funds and the services of one X- Ray Technician is to be dispensed with. It is stated that Radiographers are appointed from the NHM and payment is made in such cases by the NHM. It is submitted that the
petitioner had been directly engaged by the Hospital Management Committee and that the Hospital Management Committee does not have the funds to retain the petitioner in service. It is submitted that all further appointments which are referred to in the writ petition and in the reply affidavit are made in other projects utilising separate funds and that if the petitioner is advised for appointment through the NHM, the respondents have absolutely no difficulty in engaging her.
7. An additional reply has also been placed on record by the petitioner.
8. Having heard the learned counsel on all sides, I notice that the
appointment of the petitioner is admittedly on temporary basis and directly by the Hospital Management Committee. The Hospital Management Committee contends that due to paucity of funds, they are unable to engage the petitioner any longer. It is also contended that all further appointments to the post of X- Ray Technician and Radiographer are made by the Hospital Management Committee only through the NHM and that in such cases, the NHM meets the financial burden. In the above factual situation, I am of the opinion that the prayers, as sought for, in the writ petition cannot be granted. The writ petition fails and the same is accordingly dismissed. However, in case there are any further vacancies of X-Ray Technicians which are to be filled up by the HMC directly, the petitioner's claim for engagement shall be considered along with other similarly situated persons. sd/- Anu Sivaraman, Judge
sj APPENDIX OF WP(C) 13302/2022 PETITIONER EXHIBITS Exhibit P1 A TRUE PHOTOCOPY OF THE NOTE NO.A7/5538/99 DATED 30.10.2006 ISSUED BY THE THIRD RESPONDENT TO THE PETITIONER Exhibit P2 A TRUE PHOTOCOPY OF THE EXPERIENCE CERTIFICATE DATED 30.6.2014 ISSUED BY THE THIRD RESPONDENT
Exhibit P3 A TRUE PHOTOCOPY OF THE ORDER
NO.G2/6557/HMC/2021 DATED 16.03.2022 ISSUED BY THE THIRD RESPONDENT Exhibit P3A A TRUE PHOTOCOPY OF THE KERALA PANCHAYATH RAJ ( MANAGEMENT COMMITTEE TO PUBLIC HEALTH INSTITUTIONS) RULES Exhibit P4 A TRUE PHOTOCOPY OF THE APPOINTMENT
ORDER DATED 21/5/2022 ISSUED BY THE
THIRD RESPONDENT. Exhibit P5 A TRUE PHOTOCOPY OF THE LETTER NO.5416/22 DATED 15/6/2022 FROM THE THIRD RESPONDENT TO THE DISTRICT PROGRAMME OFFICER. RESPONDENT EXHIBITS Exhibit R3(a) Exhibit R3(a):True copy of the Minutes of the Meeting dated 08-02-2022. True copy PS to Judge