Sobha Gopinath, Usha P.D., Sheena Sebastian v. State of Kerala represented by the Secretary to the Health Department and the Director of Health Services

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN** **THURSDAY, THE 4TH DECEMBER 2008 / 13TH AGRAHAYANA 1930** **WP(C).No. 23926 of 2008(W)** **------------------------------------------** **PETITIONER(S):** **---------------------------** **1. SOBHA GOPINATH, W/O. S.MENAKRISHNATHAN, 'SAKTHI' ITHIPUZHA, UDAYANAPURAM P.O., VAIKOM.** **2. USHA P.D., C/O. VIJAYAKUMAR V.V. VEMBALATHURA HOUSE, KULASEKHARAMANGALAM P.O., KUTTUMAIL.** **3. SHEENA SEBASTIAN, C/O. BENNO JOSEPH, KAKKASSERIL HOUSE, MENMURY P.O., MANVATTOM.** **BY ADV. SRI.P.RADHAKRISHNAN (1) SRI.MADHU RADHAKRISHNAN** **RESPONDENT(S):** - **--------------------------** **1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO THE HEALTH DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.** **2. DIRECTOR OF HEALTH SERVICES, OFFICE OF THE DIRECTOR OF HEALTH SERVICES, THIRUVANANTHAPURAM.** **BY GOVERNMENT PLEADER SRI.P.NANDAKUMAR** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/10/2008, THE COURT ON 4/12/2008 DELIVERED THE FOLLOWING:** _Kss_ ## **P.N.Ravindran, J. ===================== W.P(C).No.23926 of 2008 =====================** ## **Dated this the 4[th] day of December, 2008.** ## **JUDGMENT** The petitioners are Staff Nurses working in the Government Hospital at Vaikom. They have filed this Writ Petition alleging that for want of adequate Nurses they are compelled to work for more than 14 hours at a stretch. The petitioners have in this Writ Petition prayed for a writ in the nature of mandamus commanding the State of Kerala to implement the three shift duty system in the Government Hospital at Vaikom. The petitioners rely on Ext.P1 judgment delivered by a learned Single Judge of this Court in O.P.No.1 of 2000 and the decision of this Court in _**Seenath Beevi** v._ _**State of Kerala**_ - 2003(3) K.L.T. 788 in support of their contentions. 2. The Government Hospital at Vaikom has a bed strength of 272. The sanctioned strength of Staff Nurses and other staff excluding Doctors is as follows: |“Head Nurse|: 11| |---|---| |Staff Nurse Grade-I|:| |Staff Nurse Grade-II|: 34| |Nursing Assistant|: 27| |Hospital Attendant Grade-I|: 6| |Hospital Attendant Grade-II|: 18| |L.D./U.D. Clerk|: 6| WP(C) 23926/08 -: 2 :- 3. The petitioners submit that as against the sanctioned strength of 11 Head Nurses only 6 are in place, that though the sanctioned bed strength is 272, patients in excess of the sanctioned bed strength are admitted as inpatients and that besides inpatients, the Staff Nurses have to attend to outpatients as well. The petitioners submit that in Ext.P1 judgment, this Court had directed the State of Kerala to introduce the three shift duty system in all Taluk Head Quarters Hospitals on or before 31.12.2000 and in all other Government hospitals within one year thereafter. The petitioners submit that the State cannot plead want of funds at its disposal in view of the directions issued by this Court in Ext.P1 judgment. The petitioners further submit that Ext.P1 judgment has been followed by another learned Single Judge of this Court in _**Seenath Beevi** v._ _**State of Kerala**_ (supra) wherein this Court had directed the State of Kerala to introduce the three shift duty system in the Government Hospital at Tirurangadi. 4. On behalf of the first respondent, a statement has been filed to the effect that though the Government have decided to implement the three shift duty system in all Government Hospitals, it is being implemented in a phased manner as it involves creation of a large number of posts. It is further stated that creation of posts could not be taken up due to the huge financial commitment involved and that the three shift duty system is being implemented with the existing staff and the staff appointed on contract basis through the National Rural Health WP(C) 23926/08 -: 3 :- Mission, in a phased manner. It is further stated that the three shift duty system will be implemented in the Government Hospital at Vaikom as early as possible. It is further stated that to implement the three shift duty system in the Government Hospital at Vaikom the following additional posts will have to be sanctioned. “Head Nurse Nurse : 6 Staff Nurse Grade-I : Staff Nurse Grade-II : 18 Nursing Assistant : 9 Hospital Attendant Grade-I : 1 Hospital Attendant Grade-II : 6 L.D./U.D. Clerk : 1 5. A learned Single Judge of this Court has by Ext.P1 judgment delivered in O.P.No.1 of 2000 filed by the Kerala Government Nurse's Union issued the following directions: _“2. In the statement filed on behalf of the first respondent it was stated as follows:- After giving various statistics regarding the number of Nurses required for the three shift duty system it was stated that huge financial commitment would be incurred for introducing the system in all the Hospitals in the State. According to the statement, financial liability will exceed many crores of rupees. Therefore, it was submitted that the Government is introducing the three shift system in a phased manner subject_ WP(C) 23926/08 -: 4 :- _to availability of the finance._ _3. Thus, the Government's stand is that the financial position of the State Government stands in the way of introducing the three shift duty system in the Government Hospitals. Any way, the Government have accepted in principle that a shift system must be introduced in all the Hospitals in the State. For that purpose steps are being taken gradually by introducing the system not at a stretch, but by introducing them in a phased manner. This court cannot say that the above stand of the Government is unreasonable. This court cannot compel the Government to introduce the above system by incurring huge financial commitment. At the same time, as can be seen from the statement and exhibits produced by the petitioner, all the Medical College Hospitals and District Hospitals are having the benefit of three shift duty system. Some of the Taluk Headquarters Hospitals also are having the above system. Therefore, the Government is directed to introduce the system in all the Taluk Headquarters Hospitals on or before 31[st] December, 2000. Thereafter within one year the Government must take steps steps to introduce the shift system in all the other Hospitals. Since the Government is given sufficient time, they must also find out the sufficient finance for the above purpose within the above stipulated time. Since the Government have got a duty to the people to extend the medical facilities and health care, they cannot wriggle out from the above responsibility by stating that they_ WP(C) 23926/08 ## -: 5 :- _have no finance to implement the above system. It is for the Government to find out the ways and means to see that the people in the State are given proper medical care and hospital facilities.”_ 6. Ext.P1 judgment has become final. Ext.P1 judgment directs the State Government to implement the three shift duty system in all Taluk Head Quarters Hospitals on or before 31.12.2000 and in all other Government Hospitals within one year thereafter. This Court has in Ext.P1 judgment held that the Government cannot wriggle out from the said obligation on the ground that they have no funds at their disposal. Ext.P1 judgment was followed by another learned Single Judge of this Court in _**Seenath Beevi** v._ _**State of Kerala**_ - (supra) and the Government was directed to implement the three shift duty system in the Government Hospital at Tirurangadi. In _**Seenath Beevi**_ (supra) this Court held as follows: _“23. As already stated, shortage of funds rather financial difficulty is the only contention urged by the respondent-State as a defence against the nonimplementation of 3 shift duty system in the Government Hospitals. I am unable to accept the above contention as justifiable reason to perpetuate the illegality and infringement of the fundamental and the inalienable right guaranteed under Art. 21 of the Constitution. It is the Constitutional obligation of the State to find out the required funds to preserve such fundamental rights,_ WP(C) 23926/08 -: 6 :- _otherwise Government will be reduced to a machinery not worth its name. Salt is worth its name because of its savour. Government cannot afford to stand as a helpless spectator witnessing injury to public health and the life of its workers and citizens. Let me repeat what the learned Judge (C.S. Rajan, J.) said in Ext.P1 in this connection:_ _“Since the Government is given sufficient time, they must also find out the sufficient finance for the above purpose within the above stipulated time. Since the Government have got a duty to the people to extend the medical facilities and health care, they cannot wriggle out from the above responsibility by stating that they have no finance to implement the above system. It is for the Government to find out the ways and means to see that the people in the State are given proper medical care and hospital facilities.”_ But the respondents pretend ignorance of the above directions, that is what the petitioner says in this Writ Petition. 24. Financial stringency pleaded by the State is no good ground to avoid implementation of the shift duty system in the Government Hospitals. There are authoritative pronouncements of the Supreme Court in support of the view I have taken. In _**Municipal Council, Ratlam v. Vardhichand**_ [AIR 1980 SC 1622], _**All India Imam Organisation v. Union of India**_ [1993 (3) SCC 584], _**State of H.P. v. H.P. State Recognised & Aided Schools Managing Committees**_ [1995 (4) SCC 507] and _**Kapila Hingorani v. State of Bihar**_ [2003 (6) SCC 1] = [2003(3) KLT (SC) (SN) 1] Supreme Court has considered the above WP(C) 23926/08 -: 7 :- question. In _**Municipal Council, Ratlam**_ (supra) His Lordship Justice V.R.Krishna Iyer said: _“A responsible Municipal Council constituted for the precise purpose of preserving public health and providing better finances cannot run away from its principal duty by pleading financial liability.”_ In _**State of H.P. v. H.P. State Recognised & Aided Schools Managing Committees**_ [1995 (4) SCC 507] the Apex Court opined: _“The constitutional mandate to the State, as upheld by this Court in Unni Krishnan case (1993) 1 SCC 645 - to provide free education to the children upto the age of fourteen - cannot be permitted to be circumvented on the ground of lack of economic capacity or financial incapacity.”_ Now in a very recent decision of the Supreme Court in _**Kapila Hingorani**_ (supra) the legal proposition is reiterated in the following manner: _“Financial stringency may not be a ground for not issuing requisite directions when a question of violation of fundamental rights arises.”_ In _**Kapila Hingorani**_ (supra) what was said by the Supreme Court in All India Imam Organisation (supra) has been extracted thus: _“..... Much was argued on behalf of the Union and the Wakf Boards that their financial position was not such that they can meet the obligations of paying the imams as they are being paid in the State of Punjab. It was also argued that the number of mosques is so large that it would entail heavy expenditure which the Boards of different_ WP(C) 23926/08 -: 8 :- _States would not be able to bear. We do not find any correlation between the two. Financial difficulties of the institution cannot be above fundamental right of a citizen. If the Boards have been entrusted with the responsibility of supervising and administering the wakf then it is their duty to harness resources to pay those persons who perform the most important duty, namely, of leading community prayer in a mosque the very purpose for which it is created (emphasis supplied).”_ In the light of the above decisions it has to be held that the respondents are not justified in delaying the implementation of 3 shift duty system, even ignoring the observations made by the Division Bench of this Court as early as on 23.8.1994 (judgment in O.P.No.6842 of 1990) and the specific directions issued by a learned Single Judge of this Court in Ext.P1 judgment dated 2.3.2000. Moreover the hours of employment thrust on the petitioner and similarly situated persons is an infringement of the fundamental right to life guaranteed under Art. 21 of the Constitution. Accordingly, I allow this Original Petition granting the following reliefs: (i) There shall be a declaration that compelling the petitioner to be on duty continuously for 14 hours a day for 6 days consecutively in a week is illegal and unconstitutional. (ii) The respondents are directed to introduce 3 shift WP(C) 23926/08 -: 9 :- duty system in the Government Hospital, Tiroorangadi, immediately and redress forthwith the grievance of the petitioner. (iii) It is made clear that in the light of the declaration above made to the effect that the impugned action of the respondents is illegal and unconstitutional, the prevailing system of assigning duty for 14 hours continuously to the petitioner and other nursing staff should not be continued. It follows that the respondents shall take expeditious steps to introduce 3 shift duty system for the nursing staff in all the hospitals.” 7. By Ext.P1 judgment, this Court had directed the State Government to implement the three shift duty stem in all Taluk Head Quarters Hospitals on or before 31.12.2000 and in all other Government Hospitals within one year thereafter. The period fixed by this Court expired long back. Nearly 8 years have passed after the expiry of the time fixed by this Court in Ext.P1 judgment. In view of Ext.P1 judgment to which the State of Kerala is a party and the clear and categoric direction contained therein, the State cannot at this distance of time plead as it has done in this case that its financial position does not permit it to implement the three shift duty system except in a phased manner. In this state of affairs, the stand taken by the State Government in the statement dated 8.9.2008 cannot be countenanced. In the result, I allow this Writ Petition and direct the State of Kerala WP(C) 23926/08 -: 10 :- to implement the three shift duty system in the Government Hospital at Vaikom within three months from the date of receipt of a copy of this judgment. P.N.Ravindran, Judge. ess 6/11