High Court
Case Details
WP(C) 4360/2012 BEFORE THE HON’BLE MR. JUSTICE UJJAL BHUYAN Heard Mr. T.J. Mahanta, learned Counsel for the petitioner and M s. A.Verma, learned Standing Counsel, Health Department for respondent Nos. 1 to 4. Also heard Mr. D. Nath, learned Counsel for respondent No.5. In this writ petition, petitioner seeks quashing of order dated 13-02-2012 passed by the Director of Health Services, Assam whereby promotion an d posting order of respondent No.5 as Matron / Nursing Superintendent in B.P. Ci vil Hospital, Nagaon was modified and instead respondent No.5 was promoted as Di strict Public Health Nurse under the disposal of Additional Chief Medical and He alth Officer (FW), Karbi Anglong, Diphu. By the said order, respondent No.5 was also directed to complete the one year Public Health Nursing (PHN) training/dipl oma and to submit the same to the Directorate of Health Services, Assam in due c ourse. Case of the petitioner is that she is presently serving as Publi c Health Nurse and her next promotional post is District Public Health Nurse. Th e said post is a promotional post and has to be filled up on the basis of merit and qualification. As per guidelines of Indian Nursing Council, the essential qu alifications for the post of District Public Health Nurse are as under :- (i) Post Certificate Diploma in Public Health Nursing and Supervision Post Basic B.Sc Degree; B.Sc Degree in Nursing OR (ii) Registered Nurse and registered midwife, (iii) Five years experience of working as a Public Health Nurse in public health nursing administration at PHC level. Desirable :- Master’s Degree in Nursing. Petitioner being eligible and qualified to be promoted to the po st of District Public Health Nurse, she submitted an application before the Dire ctor of Health Services, Assam offering her candidature for the said post. Respondent No.5 was serving as Assistant Matron. By order dated 01-02-2012 issued by the Director of Health Services, Assam, she was promoted to the post of Matron and posted at B.P. Civil Hospital, Nagaon. Twelve days there after, Director of Health Services issued the impugned order dated 13-02-2012. P etitioner submitted a representation dated 28-03-2012 before the Commissioner an d Secretary to the Government of Assam, Health and Family Welfare Department aga inst the promotion of respondent No.5 and also regarding non-consideration of he r case. As no decision was taken, petitioner has filed the present writ petition . Basic contention of the petitioner is that respondent No.5 does not have the required qualification to hold the post of District Public Health N urse. Respondent No.5 is a near relative of the present incumbent holding the of fice of Director of Health Services, Assam. It is because of the aforesaid reaso n that despite the eligibility of the petitioner for promotion to the post of Di strict Public Health Nurse, her case was not considered and instead respondent N o.5 was illegally promoted. This Court by order dated 14-09-2012 had issued notice and it wa s observed that the present posting of respondent No.5 as District Public Health Nurse at Diphu shall be subject to further orders of the Court. Respondent No.3 i.e. Director of Health Services, Assam in his a ffidavit has stated that the qualification for the post of District Public Healt h Nurse is that one must be a registered nurse or midwife having five years of e xperience in public health administration at PHC level. It is stated that the po st of District Public Health Nurse is a promotional post and equivalent to the p ost of Matron. As per recommendation of the Promotion Committee dated 14-02-2011 , Director of Health Services, Assam promoted the respondent No.5 to the post of Matron and posted her at B.P. Civil Hospital, Nagaon by order dated 01-02-2012. As the post of District Public Health Nurse at Diphu was lying vacant, responde nt No.5 was posted there by order dated 13-12-2012 whereby she was also directed to complete one year Public Health Nursing Training / Diploma. He has stated th at respondent No.5 was promoted as per seniority and merit and that relationship was not a ground for consideration of her promotion and posting. Respondent No.5 has also filed an affidavit which is more or les s on similar lines as the affidavit of respondent No.3. This Court by order dated 10-01-2013 had directed the department al Commissioner and Secretary to file an affidavit on the points formulated ther ein as the affidavit of the Director was found to be inadequate. Pursuant thereto, the departmental Commissioner and Secretary fi led an affidavit. It is stated that the post of District Public Health Nursing S upervisor is equivalent to the post of Matron, having only one channel for promo tion i.e. through the General Nursing Service. Respondent No.5 was originally co nsidered by the Promotion Committee for promotion to the post of Matron and acco rdingly, she was promoted. Thereafter, the promotion order was modified and she was posted at Diphu as District Public Health Nursing Supervisor. According to t he Commissioner and Secretary, the following are the qualifications for promotio n to the post of District Public Health Nursing Supervisor :- (i) GNM pass from an institute recognized by the Indian Nursing Council; (ii) Registered Nurse and Midwife; (iii) Government usually sponsors the appointee for one year Diploma Course in P ublic Health Nursing Training. Petitioner has filed reply affidavit. The qualification for the post of District Public Health Nursing Supervisor as stated by the Commissioner and Secretary has been denied and disputed as being contrary to the guidelines o f Indian Nursing Council. Petitioner has also placed on record the relevant port ion of the note sheet relating to promotion of respondent No.5, which she had ob tained under the Right to Information Act, 2005, which will be referred to sligh tly more in detail in the subsequent part of this order. This Court was not satisfied with the affidavit filed by the dep artmental Commissioner and Secretary and, therefore, by the order dated 04-06-20 13, directed production of the record on 25-07-2013. Accordingly, the record was produced on 25-07-2013. Arguments were also heard and the case was reserved for order today. cord produced. I have heard the submissions made and I have also perused the re
Legal Reasoning
First and the foremost issue for consideration is the relationsh ip of respondent No.5 with Dr. D. Hojai, presently holding the office of Directo r of Health Services, Assam and whether the same had any bearing on the promotio n of respondent No.5. Petitioner has stated on oath that respondent No.5 is a close relative of Dr. D. Hajoi and this factor was instrumental in her promotion and subsequent posting at Diphu. Respondent No.5 in her affidavit is completely silent on this aspect. On the other hand, respondent No.3 in his affidavit has stated that respondent N o.5 has been promoted on the recommendations of Promotion Committee strictly on seniority and merit and that relationship was not a ground for consideration of promotion of respondent No.5 and her subsequent posting at Diphu. Thus, there is no denial of the assertion of the petitioner regarding the close relationship b etween Dr. D. Hojai and respondent No.5, which amounts to admission of the above fact. A perusal of the record would show that the Director of Health Services, Assam Dr. D. Hajoi was present and participated in the meeting of the Promotion Committee held on 11-02-2011. Infact, he was the Chairman of the Promotion Commi ttee. Being a close relative of respondent No.5, Dr. D. Hojai ought to have recu sed himself from the proceedings when the case of respondent No.5 was being cons idered, which he did not do. On the contrary, a perusal of the note date d 13-02-2012 in the note sheet would indicate that as per verbal order of the Di rector of Health Services, respondent No.5 was promoted to the post of Matron an d posted at Nagaon. Again, as per the instruction of the Director, respondent No .5 was re-posted as District Public Health Nurse against the vacant post at Diph u. It was pointed out in the note that respondent No.5 did not have one year dip loma course in Public Health Nursing or any other course. However, as desired by the Director, it was proposed that respondent No.5 be posted as District Public Health Nurse at Diphu temporarily subject to successful completion of atleast o ne year diploma course in Community Health Nursing/Public Health Nursing. This w as approved by the Director on 13-02-2012 itself. Thereafter, the impugned order dated 13-02-2012 was issued on the same day. Thus, as the sequence of events as noticed above would indicate, all this happened during the course of one day on the instruction of the Director. From the above, interference of Dr. D. Hojai in the promotion of respondent No.5 is quite apparent from the record. Thus, respondent No.3 had a personal interest in the promotion of respondent No.5. Element of personal bias is clearly discernible. Being a close relative of respondent No.5, his participa tion in the Promotion Committee meeting had vitiated its recommendation for prom otion of respondent No.5. On this ground alone, promotion of respondent No.5 to the post of Matron and her subsequent posting as District Public Health Nurse at Diphu cannot be sustained. Those are accordingly set aside and quashed. Respond ents are directed to constitute fresh Promotion Committee to consider the case o f the petitioner, respondent No.5 and all other eligible candidates. Candidature of each of the candidates shall be considered strictly in accordance with the g uidelines of Indian Nursing Council. Since the case has been decided on the above issue, deliberation and decision on the other grounds raised by the petitioner is considered not ne cessary at this stage. Writ petition is accordingly allowed. No.3 on personal account to the petitioner within four weeks from today. Cost of Rs.5000/- is imposed, which shall be paid by respondent urned back.
Legal Reasoning
Record produced by Ms. A. Verma, learned Standing Counsel is ret