Suresh Kumar And Ors vs State Of Rajasthan

These writ petitions have been filed by the petitioners seeking a direction to the respondents to re-determine the vacancies of Nurse Grade-II (GNM) pursuant to the advertisements dated 04.05.2007, 08.08.2007 and advertisements pursuant to order dated 15.04.2008, as directed by this Court by its order dated 07.12.2016.

The issue raised in the present writ petitions has got a checkered history. The advertisement dated 04.05.2007 was issued for engagement on the post of Nurse Grade-II (GNM) for 2500 posts in various districts under the National Rural Health Mission ('NRHM'), it was stipulated therein that merit shall be prepared district-wise and preference would be given to bonafide resident of the concerned district.

Another advertisement dated 08.08.2007 was issued for engagement of GNM under NRHM for 6172 posts. In the said advertisements, the preference based on district was not indicated as was indicated in advertisement dated 04.05.2007. Subsequently a corrigendum was issued clarifying that merit shall be prepared on State level, which corrigendum was later withdrawn.

The withdrawal of corrigendum was challenged before the High Court. In Dema Ram Choudhary v. State & Ors.: SBCW No.1120/2008, the later corrigendum dated 21.01.2008 was quashed and the respondents were directed to prepare merit list on State level. The advertisement dated 08.08.2007 was cancelled by the respondents on 29.03.2008 and again advertisements at District level pursuant to order dated 15.04.2008 were issued for a total 3704 vacancies. As the said advertisements were issued at district level, again in Sant Lal Yadav v. State & Ors.: SBCW No.741/2008, judgment was delivered in the light of earlier judgment in the case of Dema Ram Choudhary (supra).

In the meanwhile, on account of implementing the judgment in the case of Dema Ram Choudhary (supra), the merit list prepared pursuant to the advertisement dated 04.05.2007 was disturbed and the respondents terminated services of various candidates, who were lower in merit on account of preparation of merit list State-wise.

Feeling aggrieved, SBCW No.6207/2006 (Raj Kumar & Ors. v. State of Raj. & Ors.) was filed, wherein the respondents were restrained from terminating the service of the candidates, who were given appointments pursuant to the advertisement dated 04.05.2007. Several candidates, who could not find place in merit pursuant to the advertisement dated 04.05.2007 also approached this Court.

On 01.03.2011, while hearing the petition filed by Raj Kumar (supra), the matter was referred to the Larger Bench. The Full Bench by its judgment dated 30.11.2015, came to the conclusion that under the NRHM, a preference is given on the basis of place of residence and/or local criteria among the equals then the same was not irrational or in violation of Article 14 of the Constitution of India and directed placing of the writ petitions before the Single Bench for disposal.

The petition filed by Raj Kumar (supra) and other connected matters were decided by judgment dated 07.12.2016 (Annex.-33), wherein the following directions were given:-

"Considering all the aspects and looking into the nature of litigation which has protracted for year together, I deem it appropriate to make following direction in consonance with the order passed by the Full Bench for closing the controversy:

1] The posts which were advertised under the advertisement dated 04.05.2007 shall be filled up strictly on the basis of district-wise merit lists, which were prepared for the candidates who had applied under the said advertisement in each district; meaning thereby that no candidate who has applied subsequently under the advertisement of 08.08.2007 (which was later on withdrawn) or under advertisement pursuant to notification dated 15.04.2008 would be included in the said list and appointment shall be made accordingly for 2500 posts of GNM distributed all over State of Rajasthan;

2] As the advertisement dated 08.08.2007 was withdrawn and immediately thereafter notification dated 15.04.2008 was issued, which required to fill up only 3704 posts in Rajasthan instead of 6172 posts advertised earlier, without there being any bifurcation made, I direct that the State Government shall now take into consideration all the posts of GNM which were available up to 15.04.2008 under the NRHM scheme for the State of Rajasthan, distributing them all over 34 districts and fill them from candidates who had applied under the advertisement dated 08.08.2007 or under the advertisement issued by each district pursuant to notification dated 15.04.2008 as pointed out by the counsel for the respondents by giving example of Barmer district.

3] The State Government shall conduct an exercise finding out total number of posts available up to 15.04.2008 and bifurcating them district-wise and fill them accordingly by preparing district-wise merit lists from among candidates who had applied either under the advertisement dated 08.08.2007 or under the advertisements issued in pursuance of notification dated 15.04.2008 by various districts.

4] Such exercise of preparing merit lists districtwise shall be done within a period of one month. If any candidate has any objection, he would submit his grievance to the concerned District CMHO. After examining such objections and deciding the same, for which 15 days are allowed to CMHOs, final merit list for appointment to GNMs in the district shall be published within one month thereafter and appointments will accordingly be given to the candidates.

Those who have already been appointed and are working and their names find place again in the district-wise merit list, shall not be disturbed while those who had been ousted on account of revised merit list, shall be given appointment and notional benefit, if so available as per the scheme.

5] It has been pointed out and informed to this Court that a subsequent advertisement dated 28.01.2016 was issued wherein 3167 posts of GNM were advertised. However, it has been informed that this Court has already restrained respondents from filling up those posts till the exercise is conducted in terms of order passed by the Full Bench, in separate proceedings in S.B. Civil Writ Petition No.392/2016; therefore, I need not delve further on it.

Accordingly, all these writ petitions are disposed of with directions as stated herein above so that there may be given a quietus to the litigation."

When the directions issued in the case of Raj Kumar (supra) were not implemented, the petitioners filed contempt petitions. During pendency of the contempt petition, on 04.05.2017, the respondents issued interim merit list for 3704 posts of GNM and called for objections, whereafter on 19.07.2017, the final merit list for 3704 posts were issued, whereafter on 04.09.2017, the contempt petitions filed by the petitioners were dismissed, inter alia, with the observations that in case, the petitioners were aggrieved with the method of determination of the posts or that the number of posts have been wrongly determined, they would be at liberty to challenge the same in accordance with law.

Whereafter, the present writ petitions have been filed by the petitioners seeking to question the determination made and other consequential reliefs pursuant to the judgment dated 07.12.2016. It is, inter alia submitted by learned counsel for the petitioners that the respondents have wrongly determined only 3704 posts pursuant to the directions issued by this Court, wherein the respondents were directed to take into consideration all the posts of GNM, which were available upto 15.04.2008 under NRHM Scheme and fill them from candidates, who had applied under the advertisement dated 08.08.2007 or under the advertisements issued by each district pursuant to order dated 15.04.2008. The petitioners claimed that the total number of vacancies upto 15.04.2008 were as under:-

"(i) In terms of advertisement dated 8.8.2007 :- 6172

(ii) in terms of the instructions/letter dated 23.01.2008

(a) NRHM Phase-I remaining vacant 71

(b) Empowerment Scheme of 365 institutions 171

(c) Under MTC Scheme 136

(d) RCH (FBAC) Scheme 112

(iii) In addition to above subsequently additional sanctioned posts i.e. in terms of order dated 5.4.2017 and in terms of U.O. note dated 11.4.2008

3704 TOTAL:- 10366"

However, it was fairly submitted by learned counsel for the petitioners that qua 71 posts pertaining to NRHM Phase-I remaining vacant, the petitioners cannot have any claim, inasmuch as, the Court in the case of Raj Kumar (supra) confined the same to the candidates, who applied pursuant to the advertisement dated 04.05.2007. Further, as the posts said to be vacant for Empowerment Scheme of 365 Institutions, under MTC Scheme and RCH (FBAC) Scheme did not form part of the advertisement, regarding which, the directions were issued by the Court, the same cannot form subject matter of the present petitions.

It is submitted by learned counsel for the petitioners that in the pre-litigation committee meeting dated 14.02.2017 (Annex.-34), the respondents had clearly directed the Project Director to determine the available vacancies till 15.04.2008 and even if any posts between 08.08.2007 to 15.04.2008 has been cancelled, they may also be included. It is claimed that the response dated 05.04.2017 (Annex.-44) given by the Director, NHM that the available vacancies were 3704 was essentially baseless.

With reference to UO note dated 11.04.2008, which has been referred in the letter dated 05.04.2017, it is submitted that as per the programme implementation plan of additionalities under NRHM for 2008-09, 3704 posts were created and the advertisement dated 22.04.2008 clearly referred to the UO note dated 11.04.2008 and, therefore the posts essentially were confined to the additionalities under the PIP for 2008-09 and the posts, where were advertised by advertisement dated 08.08.2007 (Annex.-4) i.e. 6172 posts, which pertained to the earlier PIP were available on 15.04.2008 and as now the respondents have only granted appointments on 3704 posts, the 6172 posts, which were vacant as on 15.04.2008 have not been filled by the respondents as per the directions given in the case of Raj Kumar (supra) and, therefore, the respondents be directed to act in accordance with the directions in letter and spirit and fill-up 6172 vacancies, which were available as on 15.04.2008 and have not been filled.

Submissions were made that different PIPs for each year are issued as is evident from Annex.-1, Annex.-10, Annex.-11 and Annex.-19 and, therefore, the action of the respondents in only filling-up 3704 vacancies, cannot be sustained.

Learned counsel for the respondents vehemently opposed the submissions made by learned counsel for the petitioners. It was submitted that the petitions filed by the petitioners is barred by principles of constructive res-judicata, inasmuch as, in the writ petition filed by Raj Kumar (supra), the issue about the vacancies had been raised and the Court gave a particular direction, which has been followed by the respondents, the contempt petition has already been dismissed and, therefore, the petitioners cannot now be permitted to raise the issue all over again.

Submissions were made that merely because the Court while dismissing the contempt petition, granted liberty to the petitioners to question the determination of vacancies cannot arm the petitioners to maintain the petitions, which are otherwise barred. Reliance was placed on judgment in Shiv Chander More & Ors. v. Lieutenant Governor and Ors.: (2014) 11 SCC 744.

Coming on to the merit of the issues raised pertaining to determination of vacancies, it was submitted that by advertisement dated 04.05.2007 (Annex.-2), 2500 vacancies were advertised for Sub-Health Centres. Whereafter, by advertisement dated 08.08.2007 (Annex.-4), 6172 vacancies were advertised, which pertained to 2500 for Sub-Health Centres and 3672 for Community Health Centres ('CHC') and Primary Health Centres ('PHC'). In the advertisement in Clause - 7 & 8, it was specifically indicated that in the applications received the previous applications would be taken into consideration for preparation of merit and that those, who had applied pursuant to the advertisement dated 04.05.2007, they need not apply again, which clearly shows that 2500 vacancies for Sub-Health Centres, which were advertised by advertisement dated 04.05.2007, have been included in the advertisement dated 08.08.2007.

Further submissions were made that it was always the case of all the parties that the advertisement dated 08.08.2007 included the 2500 posts as advertised by advertisement dated 04.05.2007, which is reflected from the order dated 11.05.2016 passed in SBCW NO.6207/2009 (Annex.-30).

It was then submitted that in the instructions dated 23.01.2008 (Annex.-9), it was clearly indicated that the selection process for GNM pursuant to the advertisement dated 08.08.2007 was to be undertaken for 674 positions in Community Health Centres and 2998 positions in Primary Health Centres and 71 vacant positions for NRHM, which brings the total vacant position to 3672 for CHCs and PHCs. In the said guidelines also, it was indicated that those, who could not get engagement in the Phase-I of NRHM Scheme, merit list was prepared by including them and, therefore, essentially no positions were available for Sub-Health Centres.

It was further submitted that by order dated 25.03.2008 (Annex.-18) as the contract period, which was proposed by advertisement dated 08.08.2007 was coming to an end on 31.03.2008 and as the engagement had not proceeded further on account of litigations, the advertisement dated 08.08.2007 alongwith the subsequent directions dated 25.08.2007 and 21.01.2008 were cancelled. Whereafter on 15.04.2008 (Annex.- 21), fresh advertisement for 3672 posts at district level were advertised, which were vacant.

Learned counsel for the respondents attempted to submit that as per the PIP 2007-08, it was stipulated that State was required to fill-up MPW (male posts) by State budget and the provisions of second ANM in Sub Centres under NRHM was made conditional on providing of the posts of MPW (male) at the Sub Centers, and as the said positions of MPW could not be created, the said positions of ANM were not available and, therefore, the indication made in the communication dated 05.04.2017 (Annex.- 44) regarding availability of 3704 posts of ANM as on 15.04.2008 was correct and justified and the petitioners in this regard have no case and the petitions deserve to be dismissed.

Learned counsel for the petitioners in rejoinder submitted that the preliminary objections raised by the respondents have no substance. It was submitted that the Court gave specific directions by its judgment dated 07.12.2016. No determination therein was made as to the number of vacancies available on 15.04.2008 and the direction was given to determine the vacancies. The respondents arbitrarily determined the vacancies at 3704. The contempt petition was filed when even the said determination had not taken place. Whereafter during the pendency of the contempt petition, the order was passed and when the issue regarding incorrect determination was raised in the contempt petition, the Court while disposing of the contempt petition, permitted the petitioners to re-agitate the issue and, therefore, there is no question of principles of constructive res-judicata having any application.

Reliance was placed on J.S. Parihar v. Ganpat Duggar & Ors.: (1996) 6 SCC 291 and Commissioner, Karnataka Housing Board v. C. Muddaiah : (2007) 7 SCC 689.

Further submissions were made that the respondents have made incorrect submissions pertaining to availability of the vacancies. With reference to the advertisement dated 04.05.2007, it was indicated that 2500 posts were advertised as part of Phase-I, which posts were filled-up before the advertisement dated 08.08.2007 was issued, which pertained to Phase-II, wherein also a specific stipulation was made that those engaged in Phase-I, shall not be eligible, which clearly shows that the engagement pursuant to advertisement dated 04.05.2007 was already over and, therefore, the submissions made that 2500 posts for Sub-Health Centres indicated in the advertisement dated 08.08.2007 were the same posts, which formed part of advertisement dated 04.05.2007 is factually incorrect.

It is also submitted that no plea whatsoever was raised at any stage regarding the requirement of filling-up the positions of MPW and the vacancies of GNM being dependent on the said positions and, therefore, the plea raised in this regard cannot be now raised. It was prayed that the petitions be allowed.

I have considered the submissions made by learned counsel for the parties and have perused the material available on record.

So far as the preliminary objections raised by the petitioners regarding the petitions being barred by constructive res-judicata is concerned, at the stage when the petition was filed by the petitioners in the case of Raj Kumar (supra), there was no determination of posts as to whether 6172 posts were available or any other number of posts were available for being filled-up by way of engagement under NHRM. Even while deciding the said writ petition, this Court specifically required the respondents to taken into consideration all the posts of GNM, which were available upto 15.04.2008 and, therefore, essentially no determination was made. Once the Court by its judgment dated 07.12.2016 ordered for determination, it cannot be said that the plea sought to be raised now based on such determination would be barred by principles of constructive res-judicata.

Admittedly, petitioners after the judgment, held pre-litigation meeting, decided to follow the judgment dated 07.12.2016 and, thereafter during the pendency of the contempt petition, determined the vacancies at 3704. This Court while deciding the contempt petition, came to the conclusion that once the direction in whatever form has been complied with by the respondents, the contempt petition, cannot be proceeded further, however, left it open for the petitioners to question the validity of such determination and, therefore, it cannot be said that the petitioners in any manner were precluded from questioning the validity of such determination in the present writ petitions, as such the preliminary objection raised has no substance.

Coming to the merits of the determination made, the advertisement dated 04.05.2007, which pertained to 2500 posts clearly stipulated as under:-

"उप सचिव, स्वास्थ्य एवं परिवार कल्याण मंत्रालय, एनआरएचएम डिविजन, भारत सरकार के ऑफिस मेमोरेंडम संख्या-9 (22)/06-एनआरएचएम-1 दिनांक 8.12.06 के द्वारा एनआरएचएम के तहत चिकित्सा एवं स्वास्थ्य विभाग द्वारा संचालित उप स्वास्थ्य केन्द्रों (सामान्य/दुर्गम) पर ग्रामीण चिकित्सा व्यवस्था को सुदृढ़ किए जाने हेतु प्रथम चरण में 2500 जीएनएम के पदों को पूर्ण रूप से अनुबंध के आधार पर भरने की स्वीकृति प्राप्त होने पर प्रमुख शासन सचिव, चिकित्सा, स्वास्थ्य एवं आयुर्वेद विभाग के आई.डी.क्रमांक-202/पीएचएस/07 दिनांक 3.5.07 की पालना में जीएनएम पद की योग्यताधारियों से आवेदन पत्र आमंत्रित किए जाते हैं"

From the above, it is apparent that in Phase-I, 2500 GNM posts were to be filled based on contract. It is not in dispute that the said 2500 posts were duly filled-up in terms of the advertisement dated 04.05.2007, whereafter the advertisement dated 08.08.2007 (Annex.-4) was issued, wherein the stipulation reads as under:-

"प्रमुख शासन सचिव, चिकित्सा, स्वास्थ्य एवं आयुर्वेद विभाग, के आई .डी.क्रमांक-3899/पीएचएस/07 दिनांक- 6.8.07 की पालना में एनआरएचएम योजना के तहत चिकित्सा एवं स्वास्थ्य विभाग द्वारा संचालित सामुदायिक स्वास्थ्य केन्द्र, प्राथमिक स्वास्थ्य केन्द्र एवं उप स्वास्थ्य केन्द्र (सामान्य/दुर्गम) पर ग्रामीण एवं शहरी चिकित्सा व्यवस्था को सुदृढ़ किए जाने हेतु द्वितीय चरण में प्रत्येक सामुदायिक स्वास्थ्य केन्द्र एवं प्राथमिक स्वास्थ्य केन्द्रों के लिए दो-दो कुल 3672 जीएनएम एवं उप स्वास्थ्य केन्द्रों के लिए 2500 जीएनएम (कुल- 3672+2500 - 6172) पूर्ण रूप से व्यक्तिगत अनुबंध के आधार पर रखे जाने की स्वीकृति प्राप्त होने पर योग्यताधारियों से आवेदन पत्र आमंत्रित किए जाते है"

A perusal of the above advertisement clearly shows that in the Phase-II, besides the Sub-Health Centres, for the Community Health Centres and Primary Health Centres, a total of 6172 posts based on contract were to be filled-up.

A comparison of the posts advertised by advertisement dated 04.05.2007 district-wise with the advertisement dated 08.08.2007 for Sub-Health Centres also specifically establishes that the 2500 posts of ANM advertised vide advertisement dated 08.08.2007 for Sub Centres, had no relation with the advertisement dated 04.05.2007 as claimed by the respondents and the said posts were totally independent.

The three stipulations made in the advertisement dated 08.08.2007 further fortifies this position, which reads as under:-

"4- पूर्व में एनआरएचएम योजना के प्रथम चरण में अनुबंधित जीएनएम इस विज्ञप्ति में चयन के पात्र नहीं होंगे तथा अभ्यर्थी को उक्त आषय का अन्डरटेकिंग प्रस्तुत करना होगा कि उसके द्वारा पूर्व में जीएनएम की सेवाएं दिए जाने हेतु कोई अनुबंध नहीं किया है।

5- --------------------------------------------------------

6- --------------------------------------------------------

7- संबंधित जिले में प्राप्त समस्त आवेदन पत्रो एवं पूर्व में उपलब्ध आवेदन पत्रों को सम्मिलित कर वरीयता सूची बनाई जायेगी।

8- निदेषालय द्वारा पूर्व में जीएनएम रखे जाने हेतु जारी विज्ञप्ति दिनांक 4.5.07 में जो अभ्यर्थी आवेदन कर चुके हैं उन्हें पुनः इस विज्ञप्ति की पालना में उस जिले में आवेदन करने की आवष्यकता नहीं है।"

The stipulations clearly provides that those already engaged pursuant to Phase-I would not be eligible for selection and, therefore, the fact that posts of 2500 ANM advertised vide advertisement dated 08.08.2007 had no relation whatsoever with the advertisement dated 04.05.2007, is firmly established. Whereafter the advertisement dated 08.08.2007 and subsequent directions made in this regard, was cancelled/withdrawn by order dated 29.03.2008 (Annex.-18) and, therefore, the said positions i.e. 6172 positions remained vacant.

Relevant part of the communication/order dated 15.04.2008 (Annex.-21) reads as under:-

"विषयः- एनआरएचएम योजना के द्वितीय चरण में प्रत्येक सामु0स्वा0केन्द्र एवं प्रा0स्वा0केन्द्र पर दो-दो जीएनएम रखे जाने बाबात। उपरोक्त विषयान्तर्गत लेख है कि निदेषालय के पत्र संख्या 81 दिनांक 15/4/08 प्रति संलग्न है के द्वारा एनआरएचएम योजना के के द्वितीय चरण में प्रत्येक सामु0स्वा0केन्द्र एवं प्रा0स्वा0केन्द्र पर दो-दो जीएनएम व्यक्तिगत अनुबन्ध पर रखे जाने हेतु दिषानिर्देष जारी किये गये हैं।"

The above communication which forms the basis for issuance of the subsequent advertisements district-wise, which led to the several litigations and the posts therein have been determined as 3704, specifically provides that in the Phase-II of NRHM Scheme, 2 GNM each for each Community Health Centre and Primary Health Centre be engaged. The number whereof is fortified from UO note dated 11.04.2008, wherein the number of CHCs and PHCs have been indicated at 349 and 1503 respectively and total number of Nurse Grade-II required have been indicated as 698 and 3006 respectively, which number is commensurate with the numbers indicated in the advertisement dated 08.08.2007 except that the number of CHCs and PHCs have increased from 337 to 349 and 1499 to 1503, respectively, which essentially accounts for the increase in the positions advertised vide advertisement dated 08.08.2007 from 3672 to 3704 vide communication dated 15.04.2008. The 2500 posts meant for Sub-Health Centres as advertised by advertisement dated 08.08.2007 forming part of Phase-II are clearly missing.

The submissions made by the learned counsel for the petitioners that the 3704 posts, which have been indicated in the communication dated 15.04.2008, are independent of the positions for CHCs and PHCs as indicated in advertisement dated 08.08.2007 based on the communication made in the UO note dated 11.04.2008 that the Ministry of Health and Family Welfare has approved PIP of additionalities under NRHM for 2008-09, apparently has no substance in view of the above discussion, wherein in the communication dated 15.04.2008 (Annex.-21), a specific reference to the Phase-II of NRHM Scheme has been made, which numbers are clearly indicated as per the advertisement dated 08.08.2007 except for the number of CHCs and PHCs, which apparently increased in the meanwhile.

In view of the above fact situation, which has clearly come on record, the communication dated 05.04.2017 (Annex.-44) confining the vacancies to 3704 as on 15.04.2008 is clearly contrary to the directions given by this Court in the case of Raj Kumar (supra), wherein the respondents were directed to take into consideration all the posts of GNM, which were available upto 15.04.2008 and the decision taken in the pre-litigation meeting to take into consideration any posts, which have been cancelled for any reason and therefore 2500 posts pursuant to the advertisement dated 08.08.2007 meant for Sub-Health Centres in the Phase-II of NRHM Scheme and not included in communication dated 15.04.2008 (Annex.-21) were clearly available on 15.04.2008.

The attempt made on part of counsel for the respondent-State to indicate that on account of the stipulations made regarding the filling-up of positions of MPW and, therefore, on account of non-fullfilment of the said stipulation the said posts were not available, is essentially an attempt to catch on to straws, inasmuch as, at no stage of the entire checkered litigation, the said plea was ever raised, even in reply to the present writ petition, no such plea has been raised and, therefore, the attempt orally sought to be made by learned counsel for the respondents, which has no basis in the pleadings of the parties cannot be countenanced, which even otherwise is not apparent from the record.

As admittedly the respondents have accorded appointment pursuant to the determination of 3704 vacancies pursuant to the direction dated 07.12.2016, now the respondents are required to comply with the directions given by this Court qua the 2500 vacancies, which were available on 15.04.2008 and have not been reflected by the respondents.

A feeble prayer was made by counsel for petitioners that candidates who have applied in one district, in case there are vacancies in other districts, may be considered in those districts as well. The prayer made is ex-facie contrary to the judgment of the Larger Bench laying down/upholding district-wise selection and as such cannot be granted.

Consequently, the writ petitions filed by the petitioners are partly allowed. The action of the respondents in confining the posts of GNM for engagement under the NRHM Scheme pursuant to the directions given by this Court in the case of Raj Kumar (supra) to 3704 posts is quashed and set aside, it is held that besides 3704 posts as determined by the respondents, 2500 more posts of GNM as on 15.04.2008 were available for engagement under NRHM Scheme and in view thereof, the respondents are directed to deal with the said 2500 positions of GNM in NRHM Scheme strictly in accordance with the directions issued by this Court on 07.12.2016 in the case of Raj Kumar (supra).

Those engaged on the said 2500 posts, would be treated similarly to the candidates, who were engaged on 3704 posts for all purposes, except for the monetary benefits, which would be available to them from the date of their actual engagement.

The needful be done by the respondents within a period of six weeks from the date of this order.

No order as to costs.