Gauhati High Court
Page No.# 1/8 vs The State Of Assam And 6 Ors. A on 1 February, 2021
Page No.# 1/8
GAHC010004812021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WA/25/2021
GUNAKANTI GOHAIN AND 7 ORS.
C/O- MATRON OFFICE, GAUHATI MEDICAL COLLEGE AND HOSPITAL,
BHANGAGARH, GUWAHATI- 781032, ASSAM.
2: SMTI. JYOTSHNA PAYENG
C/O- MATRON OFFICE
GAUHATI MEDICAL COLLEGE AND HOSPITAL
BHANGAGARH
GUWAHATI- 781032
ASSAM.
3: SMTI UPASANA DEKA
C/O- MATRON OFFICE
GAUHATI MEDICAL COLLEGE AND HOSPITAL
BHANGAGARH
GUWAHATI- 781032
ASSAM.
4: SMTI. JURI BHUYAN
C/O- MATRON OFFICE
GAUHATI MEDICAL COLLEGE AND HOSPITAL
BHANGAGARH
GUWAHATI- 781032
ASSAM.
5: SMTI. KRISHNA HANDIQUE
C/O- MATRON OFFICE
GAUHATI MEDICAL COLLEGE AND HOSPITAL
BHANGAGARH
GUWAHATI- 781032
ASSAM.
6: SMTI. KHADEJA KHATUN
W/O- S.H. BARBHUIYA
Page No.# 2/8
R/O- NANAK NAGAR
BHANGAGARH
GMCH ROAD
H/NO. 7/D
P.O. DISPUR
GUWAHATI- 781005
ASSAM.
7: SMTI. MINA BALA DAS
C/O- ARJUN THAKURIA
HENGRABARI LICHUBAGAN
H/NO. 3
P.O. HENGRABARI
P.S. DISPUR
ASSAM.
8: JUNU BEZBARUAH
R/O- H/NO. 13
BISHNU NAGAR
DAKHINGAON
P.O. KAHILIPARA
DISPUR
GUWAHATI- 781019
VERSUS
THE STATE OF ASSAM AND 6 ORS. A
REP. BY THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM, HEALTH
AND FAMILY WELFARE (A) DEPARTMENT, DISPUR, GUWAHATI- 781006.
2:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
HEALTH AND FAMILY WELFARE (A) DEPARTMENT
DISPUR
GUWAHATI- 781006.
3:THE SECRETARY TO THE GOVT. OF ASSAM
HEALTH AND FAMILY WELFARE (A) DEPARTMENT
DISPUR
GUWAHATI- 781006.
4:THE DIRECTOR OF HEALTH SERVICES
GOVT. OF ASSAM
HENGRABARI
GUWAHATI
ASSAM.
5:THE JOINT DIRECTOR OF HEALTH SERVICES (NURSING)
Page No.# 3/8
HENGRABARI
GUWAHATI- 781036
ASSAM.
6:ALL ASSAM GRADUATE NURSES ASSOCIATION
HAVING ITS REGISTERED OFFICE AT RUKMINI GAON
NABARATNA PATH
REP. BY ITS GENERAL SECRETARY SMTI JUNU SARMA.
7:SMTI. JUNU SARMA
GENERAL SECRETARY
ALL ASSAM GRADUATE NURSES ASSOCIATION HAVING ITS REGISTERED
OFFICE AT RUKMINI GAON
NABARATNA PATH
Advocate for the Petitioner : MR. K N CHOUDHURY
Advocate for the Respondent : SC, HEALTH
BEFORE
HON'BLE THE CHIEF JUSTICE MR. SUDHANSHU DHULIA
HON'BLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
JUDGMENT & ORDER (ORAL)
Date : 01-02-2021
(Sudhanshu Dhulia, C.J.)
Heard Mr. KN Choudhury, learned senior counsel assisted by Mr. RM Deka, learned
counsel for the appellants. Also heard Mr. UK Nair, learned senior counsel assisted by Mr. R
Singha, learned counsel for respondents No.6 & 7 and Mr. DP Borah, learned standing counsel
for the Health Department of the Government of Assam.
2. The appellants before this Court have challenged the order of the learned Single Judge
passed in WP(C)No.3069/2018. The writ petition was filed against the selection/appointment
of the respondents (now appellants before this Court) to the post of Assistant
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Matron/Assistant Nursing Superintendent/Deputy Nursing Superintendent. By the order dated
16.11.2020, the learned Single Judge has allowed the writ petition and has quashed the
entire selection proceeding of the department concerned which in this case is the Health &
Family Welfare Department, Government of Assam.
3. Being aggrieved, the selected respondents have filed the present writ appeal before this
Court.
4. The writ petition was filed before the learned Single Judge by an Association of
Graduate Nurses of Assam, namely, All Assam Graduate Nurses' Association. The case of the
petitioner before the learned Single Judge was that the service condition of Staff Nurse etc. in
Assam are governed by a Rule known as Assam Nursing Service Rules, 1991 (for short, the
Rules of 1991) which have been framed under the proviso to Article 309 of the Constitution of
India and are hence statutory in nature. There are various cadres in the nursing services. The
broad classification is that Class II post in the nursing services consists of the following:
A. Class-II- Matron/Supdt. RHTC Charge/Principal Nursing Officer/Dist.
Public Health Nurse Supervisor/Principal Tutor.
Thereafter, Class III post consists of the following:
B. Class- III- Asstt. Matron/Sister Tutor/ Public Health Nurse Tutor/Public
Health Nurse/ICDS/Ward Sister/Ward Master/Staff Nurse/Lady Health
Visitors/A.N.M.
5. It is stated that within Class III, the promotion to the cadre of Assistant Matron is made
from the feeding cadre of Sister Tutor, Public Health Nurse Tutor, Public Health Nurse, ICDS,
Ward Sister etc.
6. For the entry level, B.Sc. Nursing and GNM were both qualified to enter the Staff
Nurses. Thereafter, from the Staff Nurse there are two streams available, either one can be
promoted to the post of Ward Sister or Sister Tutor.
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7. It has further been stated at the Bar that only Staff Nurse having B.Sc. qualification are
eligible for promotion to the post of Sister Tutor. The cadre, however, remains the same.
8. It is clear from the Rules that the Staff Nurses who opted for the teaching stream and
have become Sister Tutor, and the ones on the clinical side and are Ward Sisters, the two (i.e.
Sister Tutor and Ward Sister) are part and parcel of the same cadre. They are both to be
considered in the promotional exercise for the next higher post which is of Assistant Matron
which now further includes Assistant Nursing Superintendent and Deputy Nursing
Superintendent.
9. The case of the petitioners before the learned Single Judge was that the promotional
exercise which was undertaken clearly states that the promotion to be made on the higher
grade on the basis of seniority subject to the rejection of unfit and more particularly Rule 22
clearly provided that in this promotional exercise one gradation list be prepared where all
members of service in order of seniority shall be placed. The gradation list where the
difference is made in Rule 22 is as under:
"22. A gradation list containing the names of all members of the service in order of
seniority stating the cadre and such other particulars as to the date of birth, date of
appointment, caste etc. will be prepared and published every year."
10. The undisputed fact is that none of the Sister Tutors were promoted to the next higher
grade of Assistant Matron/Assistant Nursing Superintendent/Deputy Nursing Superintendent.
11. The All Assam Graduate Nurses' Association had filed the writ petition which was
allowed by the learned Single Judge on various grounds, but primarily on the fact that the
Rules provided for one gradation list which has to include all members of service, who were
to be promoted to the next higher grade and admittedly this was not prepared. The specific
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ground taken by the State in paragraph 22 of the affidavit was that Staff Nurses were
evaluated not on the basis of seniority (as contemplated in Rule 22) but on the basis of
qualification and their experiences. What was specifically stated in paragraph 22 is
reproduced below:
"22. That as regards the statements made in paragraphs 26, 27, 28, 29 & 30 of the
Petition, your deponent states that the Staff Nurse who are possessing higher qualification
like B.SC Nursing/M.Sc Nursing etc. are eligible and suitable for the posts of teacher at GNM
Training Institute and therefore such Nursing Personnel are promoted to the posts of Vice
Principal/Principal Tutor etc., whereas Staff Nurse who have passed the basic GNM Training
without having any extra qualification (Ward sister/Ward Incharge) are promoted to the posts
of Assistant Nursing Superintendent/Deputy Nursing Superintendent/Assistant Matron etc.
which are associated with Nursing Administration. Therefore, the Promotion Committee set
2(two) different panel list, i.e. one for Academic side/Faculty and another for Administration."
12. This the learned counsel for the petitioners who are respondents before the Court would
argue is contrary to the minutes of the Promotion Committee dated 11.12.2017 which states
as to what procedure was adopted by the Committee while undertaking the promotional
exercise while considering the eligible candidates from the feeding cadre, which was stated as
under:
"Astt.Matron (AM): To fill up 98 nos. of vacant post of Asstt. Matron i.e. 42 nos. existing
vacant posts in different health institutions and 56 nos. of newly created post of Asstt.
Matron at Model Hospitals, the Promotion Committee decided to prepare a list of 88 nos. of
incumbents from the panel list of 88 eligible Ward Incharges for promotion to the rank of
Asstt. Matron and Tutor/PHN elilgible for promotion to the next higher cadre i.e. Asstt. Matron
on basis of merit with due regards to seniority and satisfactory ACR as per Assam Nursing
Service Rules, 1991 and Indian Nursing guidelines/norms, and following 100 point roster in
relation to reservation as per Government existing rules.
Accordingly, a select list of 86 nos. of Ward Incharge/Tutor/PHN has been prepared. Out
of which, 30 nos. will be promoted against existing 30 nos. of existing vacant posts of Ward
Incharge in 1st phase. Remaining 56 nos. will be promoted in 2nd phase after obtaining
approval from the Government, which is under process.
Promotion Committee decided to include name of Smt. Gunakanti Gohain, Ward
Incharge name within the list of 30 nos. of incumbents for 1st phase of promotion as
examining Smt. Gohain's prayer for justice, it has been observed that she was deprived from
her due promotion in the year 2007-08 due to official oversight.
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13. The two stands i.e. one taken in the counter affidavit and the other in the minutes are
absolutely contrary inasmuch as in the minutes of the meeting, it has been stated that the
Sister Tutors and Ward Sisters both were considered, but the fact remains that this was not
done inasmuch as none of the Sister Tutor were finally selected or promoted to the next
higher post of Assistant Matron/Assistant Nursing Superintendent/Deputy Nursing
Superintendent, although many of them were senior to the Ward Nurses. The pleaded case of
the State Government before the learned Single Judge was that selection was not done on
the basis of seniority, but on the basis of qualification and experience of the two streams and
for this reason, Sister Tutors were only considered for promotion to the post of which are
academic in nature and are for trainers and they were not considered for the clinical post at
all. This promotional exercise, therefore, has been clearly in violation of the Rules, more
particularly, Rule 22 where promotional exercise has to be made purely on the basis of
seniority, subject to the rejection of unfit, but considering all members of the feeding cadre to
the post of Assistant Matron/Assistant Nursing Superintendent/Deputy Nursing
Superintendent from the feeding cadre of Sister Tutor as well as Ward Sister. This not been
done, the learned Single Judge was absolutely correct in setting aside the selection process
and directing that a fresh selection exercise be made in accordance with the Rules of 1991.
We find nothing in the order dated 16.11.2020 which would call for our interference.
14. Mr. KN Choudhury, learned senior counsel for the appellants relied upon two decisions of
the Hon'ble Supreme Court rendered in T.R Kapur and Others Vs. State of Haryana and
Others reported in 1986(Supp.) SCC 584 as well as in GS Lamba and Others Vs. Union of
India and others reported in (1985) 2SCC 604 wherein it was held that a relaxation has been
granted by the Government, even though there is some irregularity in exercise of these
powers that will not come on the way on the benefit already granted to the incumbents.
There is no quarrel with the legal proposition given in the two cases, however, the two cases
were in an absolutely different context, hence, not applicable to the facts of the present case.
More importantly, in the case at hand, there are contesting parties, one adversely affected
with the so called relaxation granted in favour of the other. Therefore, this case has to be
seen against the rival claims of the two parties. The claim of the writ petitioners is based on
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law. This case is simple. The law, which is the Rules of 1991 have not been followed. There
can be no dispute that this is the correct position. We are totally in agreement with the
findings of the learned Single Judge. The writ appeal is devoid of any merit and is hereby
dismissed.
JUDGE CHIEF JUSTICE
Comparing Assistant
