Judgment · High Court · 2012

Both the writ petitions filed by the same petitioner have been heard tog ether and are being disposed of by this common judgment and order. In the first writ petition, i.e. W.P.(C) No. 454/2008, the prayer of the petitioner is to set aside and quash Annexure-8 order dated 12.12.2007 by which the petitioner was promoted to the post of Principal Nursing Officer. Upon prom otion, she was posted at ANM Training School, Hailakandi under Addl. Chief Medic al Officer (FW), Hailakandi. She was so promoted from the rank of Sister Tutor. According to the petitioner, in terms of the earlier judgment of this Court refe rred to below, she was entitled to get promotion to the post of Matron and not P rincipal Nursing Officer. Such a claim has been made in reference to the promoti on of the respondent No. 4 who was junior to her to the post of Matron by order dated 31.10.2005. In the second writ petition, i.e. W.P.(C) No. 3790/2009, the prayer of t he petitioner is to relate back her promotion to the post of Matron from 31.10. 2005 on which date the respondent No. 5, i.e. her junior, was so promoted. The p etitioner has also prayed for setting aside and quashing of Annexure-8 order dat ed 05.06.2009 by which the respondent No. 5 has been transferred and posted at G auhati Medical College & Hospital (GMCH) as Matron. As referred to above, the petitioner had earlier filed a writ petition b eing W.P.(C) No. 8713/2005 challenging the aforesaid promotion of the respondent No. 5 who is the respondent No. 4 in the first writ petition, i.e. W.P.(C) No. 454/2008. By the said order, the respondent No. 4/5 was promoted to the post of Matron. It was the case of the petitioner that having regard to the requirement of the requisite length of service in the feeder grade, the respondent No. 4/5 w as not eligible for such promotion and that she was promoted without considering the case of the petitioner. The writ petition was allowed by judgment and order dated 15.06.2007 by which the respondent No. 4/5 was promoted to the post of Matron. Direction was i ssued to the respondents to consider the case of the petitioner as she was eligi ble for promotion with retrospective effect, i.e. from the date when the respond ent No. 4/5 was promoted. After the aforesaid order of this Court, the petitioner was promoted by Annexure-3 order dated 27.11.2007, however, without any retrospective effect. Ho wever, she was not promoted as Matron, but was promoted as Principal Nursing Of ficer. Thus, the grievance of the petitioner is that the said order of promotion is not in conformity with the aforesaid order of this Court on two counts, name ly the same does not give retrospective effect of promotion to the petitioner an d secondly as against the entitlement of the petitioner for promotion to the pos t of Matron, she was promoted to ex-cadre post of Principal Nursing Officer. In the first writ petition, the respondents have filed their counter aff idavit in which it has been stated that both the posts, i.e. Matron and Principa l Nursing Officer are equivalent post in respect of rank, status and pay scale a s per ROP Rules, 1996. It has also been stated that norms and qualification of t he selection of candidates for promotion to the post of Matron and Principal Nur sing Officer are also same. The grievance of the petitioner is that while prospectively promoting to the post of Principal Nursing Officer upon reversion of the respondent No. 4/5 to the post of Sister Tutor from the post of Matron pursuant to the aforesaid ju dgment and order of this Court, it was incumbent on the part of the respondents to promote her to the said post with retrospective effect, i.e. from the date wh en the said respondent was promoted. Be it stated here that by the impugned orde r dated 05.06.2009 in the second writ petition, the respondent No. 4/5 has been promoted to the post of Matron with her posting at GMCH. It is on this count, th e grievance of the petitioner is that if the respondent No. 4/5 could be appoint ed as Matron, there could not have been any reason for not promoting the petitio ner at per with her junior to the post of Matron with retrospective effect. As noticed above, in the earlier round of litigation direction of this C ourt was to consider the case of the petitioner for promotion to the post of Mat ron/ Principal Nursing Officer with retrospective effect, i.e. from the date whe n her junior was so promoted. On perusal of the material on record, it appears t hat the official respondents kept reserved the post of Matron for the respondent No. 4/5 while the petitioner was promoted to the post of Principal Nursing Offi cer. Although in the counter affidavit filed by the official respondents it has been contended that both the posts are equivalent in rank, status and pay scale, but in the avenue of promotion to the post of Matron, it is the Sister Tutor wh ich is required to be promoted, the fact that the respondents cannot be obliviou s. During the course of hearing of the writ petitions, it was submitted by the learned counsel for the petitioner that pursuant to the impugned order of pr omotion, the petitioner did not join the promotional post of Principal Nursing O fficer on protest. It is submitted that since the very order of promotion promot ing the petitioner to the post of Principal Nursing Officer is under challenge i n this proceeding, there is no question of joining the said post by the petition er. According to the learned counsel for the petitioner, since the petitioner’s entitlement is only to the post of Matron, the official respondents could not ha ve deprived of the said promotion firstly, by providing to the post of ex-cadre post of Principal Nursing Officer and secondly providing the same only with pros pective effect which is contrary to the aforesaid judgment and order of this Cou rt. Mr. K.P. Sarma, learned counsel for the petitioner has strenuously argue d that having regard to the facts and circumstances, the petitioner is entitled to get promotion to the post of Matron with retrospective effect at per with her junior, i.e. the respondent No. 4/5, who was initially promoted by order dated 31.10.2005 which, however, has been set aside and quashed by the aforesaid judge ment. On the other hand, Mr. B. Gogoi, learned SC, Health Department by producin g the written instruction furnished to him by the Director of Health Services, A ssam, submits that the respondent No. 4/5 was considered for promotion to the po st of Matron having regard to her total experience which is longer than that of the petitioner. This aspect of the matter has also been dealt with by this Court in the aforesaid judgment and order dated 15.06.2007 passed in W.P.(C) No. 871 3/2005 in which it has been categorically held that the respondent No. 5 was not eligible for promotion which was effected by order dated 31.10.2005 as she did not have the requisite experience in the feeder grade of Sister Tutor. By the sa id judgment it has also been held that the petitioner is senior to the said resp ondent No. 4/5. Accordingly direction was issued to consider her case for promot ion at per with her said junior. After the said judgment and order of this Court, it was incumbent on the part of the official respondents to consider the case of the petitioner at per with the said respondent No. 4/5 for the same post and also from the date when s he was promoted by order dated 31.10.2005. Instead of doing so, the respondents promoted the petitioner to the post of Principal Nursing Officer and that too, w ith retrospective effect. Initially although the promotion of the respondent No. 4/5 was set aside and quashed, but subsequently she was promoted to the post of Matron. However, similar treatment was not given to the petitioner. In view of the above, both the writ petitions are disposed of with the f ollowing directions: The respondents shall consider the case of the petitioner for promotion to the post of Matron at per with that of the respondent No. 4/5 with retrospect ive effect as per earlier direction of this Court. However, it is made clear tha t since the petitioner has not joined the promotional post of Principal Nursing Officer, upon such promotion to the post of Matron, she will not be entitled to back wages except notional fixation of pay. Let the entire exercise be carried out as expeditiously as possible, preferably within 31.12.2012.