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Allahabad High Court · body

2002 DIGILAW 1570 (ALL)

Bani Arora v. State of U. P.

2002-10-26

G.P.MATHUR, LAKSHMI BIHARI

body2002
JUDGMENT G. P. Mathur, J.—The relief claimed in Writ Petition No. 25408 of 1999 is for quashing of the order dated 11.5.1999 passed by the Respondent No. 2 and the order dated 24.5.1999 passed by Respondent No. 4. 2. The case set up in the writ petition is that the petitioner was appointed as staff nurse in Swaroop Rani Nehru Hospital, Allahabad (hereinafter referred to as S.R.N. Hospital) on 17.5.1978. She holds a degree in Bachelor of Science in Nursing course and accordingly an order was passed on 23.4.1996 by the Chief Medical Superintendent, S.R.N. Hospital, Allahabad, asking the petitioner to carry on teaching work in the Nursing Training School in the hospital campus. Subsequently, the Secretary of Medical Department, U. P. passed an order on 26.8.1997 attaching her with the Nursing Training School. On account of retirement of Smt. J. A. Prasad, Principal Tutor of the Nursing Training School, she was directed to discharge the responsibility of the said post by the order dated 7.10.1997 of Chief Medical Superintendent, S.R.N. Hospital, Allahabad. The Director, Medical and Health, U. P. passed an order on 11.5.1999 directing that the petitioner shall work on her regular post in the hospital and the seniormost teacher in the Nursing Training School should be handed over the charge of the Principal Tutor. Thereafter, a consequential order was passed on 24.5.1999 by the Chief Medical Superintendent, S.R.N. Hospital, directing that the petitioner shall work in the hospital and the senior-most tutor shall discharge the duties of Principal Tutor of Nursing Training School. It is these orders, which have been challenged in the present writ petition. 3. In the counter-affidavit filed on behalf of the State, it is averred that the petitioner does not possess requisite qualification for the post of tutor. The appointment on the post of tutor is made through Public Service Commission by promotion from amongst permanent sisters and ward masters who have put in three years of service. The petitioner was only a staff nurse till 7.1.2001 and since, she has not put in three years of service as sister, she is not eligible to be appointed as Tutor. It is further averred that the petitioner was transferred from Allahabad to Lucknow on 4.7.2000 and the transfer order was challenged by her by filing Writ Petition No. 3474 of 2000 which was disposed of by this Court on 12.12.2000 with certain directions. It is further averred that the petitioner was transferred from Allahabad to Lucknow on 4.7.2000 and the transfer order was challenged by her by filing Writ Petition No. 3474 of 2000 which was disposed of by this Court on 12.12.2000 with certain directions. The students of Nursing Training School made very serious complaint against the petitioner in which an enquiry was conducted by the Chief Revenue Officer who submitted a report on 29.11.2001. 4. We have heard Sri K. M. Asthana for the petitioner, Sri Kripa Shanker Singh learned standing counsel for the respondents and have perused the record. 5. Annexure-1 to the writ petition is the copy of the order dated 23.4.1996 passed by Chief Medical Superintendent, S.R.N. Hospital, Allahabad, which mentions that the petitioner was staff nurse and on her own request, she was permitted to carry on teaching work in the Nursing Training School. The order passed by the State Government on 26.8.1997 (Annexure-3 to the writ petition) also recites that the petitioner who was a staff nurse and was permanently attached to S.R.N. Hospital was being attached to Nursing Training School. S.R.N. Hospital is the hospital of the Medical College, Allahabad and Nursing Training School is also situate there. It appears that Smt. J. A. Prasad the Principal Tutor of the Nursing Training School was attaining the age of superannuation on 31.10.1997. It was in these circumstances that the Chief Medical Superintendent, S.R.N. Hospital passed the order on 7.10.1997 directing that till a permanent arrangement of Principal Tutor is made, the petitioner who had been attached with Nursing Training School, shall carry on the responsibility of Principal Tutor of the said school with effect from 1.11.1997. Subsequent thereto, the Director, Medical and Health, U. P. passed the impugned order on 11.5.1999 directing that the petitioner Smt. Bani Arora (staff nurse) who had been attached to Nursing Training School and was looking after the work of the Principal Tutor, shall be immediately attached to the S.R.N. Hospital and shall do her regular work there. It was further directed that all earlier orders passed in this regard stand cancelled and will no longer be operative. It was further directed that all earlier orders passed in this regard stand cancelled and will no longer be operative. As a consequence of the aforesaid order, the Chief Medical Superintendent, S.R.N. Hospital passed an order on 24.5.1999 directing that the petitioner who is a staff nurse shall carry on regular work in the hospital and all earlier orders passed in this regard are being cancelled. It was further directed that the seniormost tutor in the Nursing Training School shall work as Principal Tutor. These facts conclusively show that the petitioner was merely a staff nurse and had not been appointed as a tutor in the Nursing Training School. On her own request, she had merely been permitted to do some teaching work in the Nursing Training School by the order dated 23.4.1996 passed by the Chief Medical Superintendent, S.R.N. Hospital, Allahabad but no right had been created in her favour to work as Tutor. The order dated 7.10.1997 by which the petitioner was directed to carry on responsibilities of Principal Tutor, was also passed by the Chief Medical Superintendent who in law had no authority to make any substantive appointment on the post of Tutor. The said order was passed on account of the fact that the then Principal Tutor Smt. J. A. Prasad was attaining the age of superannuation on 31.10.1997. The order dated 11.5.1999, passed by the Director, Medical and Health Services, U. P., who is the highest authority in the State, clearly directed that the petitioner, who was a staff nurse, shall be attached to the hospital and shall carry on her regular work and earlier orders passed in that regard had been cancelled. There is absolutely no illegality in the order passed by the Director General. Some additional charge had been given to the petitioner, which was withdrawn and she was asked to perform the regular work of staff nurse. The order dated 24.5.1999 passed by the Chief Medical Superintendent, S.R.N. Hospital, Allahabad is merely a consequential order which had been passed to give effect to the order passed by the Director, Medical and Health Services. 6. In exercise of power conferred by proviso to Article 309 of the Constitution, the Governor of U. P. has made the Uttar Pradesh Nursing (Gazetted) Service Rules, 1996. 6. In exercise of power conferred by proviso to Article 309 of the Constitution, the Governor of U. P. has made the Uttar Pradesh Nursing (Gazetted) Service Rules, 1996. Rule 3 (a) provides that ‘appointing authority” in respect of posts of Joint Director and Deputy Superintendent means the Governor and in respect of the other posts in service means the Director General. Rule 3 (c) defines ‘Director General’ and it means the Director General of Medical and Health Services, U. P. Rule 3 (h) defines ‘substantive appointment” and it means an appointment, not being an ad hoc appointment on a post in the cadre of the service made after selection in accordance with the rules and, if there are no rules, in accordance with the procedures prescribed for the time being by executive instructions issued by the Government. Rule 5 lays down the source of recruitment and sub-rule (1) provides that appointment on the post of tutor shall be made by promotion from amongst substantively appointed Sisters and Ward Masters who have completed seven years service, as such on the first day of recruitment. Rule 8 provides that appointment on the post of Tutor, Principal Tutor, Assistant Matron, Matron and Senior Matron shall be made by promotion on the basis of seniority subject to rejection of unfit, through selection committee consisting of Director, Medical and Health Services, Additional Director, Medical and Health Services and Joint Director (Connected with Nursing Department). Rule 9 provides that the appointing authority shall make appointments by taking the names of candidates in the order in which they stand in the list prepared under Rule 8. 7. It is not the case of the petitioner that she has been selected for the post of the tutor in accordance with the rules. It is also not in dispute that the petitioner has not been appointed as tutor by the appointing authority mentioned in the rule. No appointment order as Tutor as provided in Rule 9 has been issued in favour of the petitioner. In these circumstances, the petitioner has absolutely no right of any kind to work on the post of tutor. The impugned order directing her to perform regular work as staff nurse in S.R.N. Hospital, Allahabad is, therefore, perfectly valid and does not suffer from any infirmity. 8. Civil Misc. In these circumstances, the petitioner has absolutely no right of any kind to work on the post of tutor. The impugned order directing her to perform regular work as staff nurse in S.R.N. Hospital, Allahabad is, therefore, perfectly valid and does not suffer from any infirmity. 8. Civil Misc. Writ Petition No. 32358 of 2002 has been filed by the petitioner praying that the respondents may be restrained from interfering in her functioning as tutor (Principal) in Nursing Training School, S.R.N. Hospital, Allahabad. A further direction has been sought that the respondents may be directed to pay her salary regularly including the arrears of salary for the post with effect from 7.7.2000 to 15.12.2000 and from December, 2001 to till date. 9. It appears from the record that the Chief Medical Superintendent, S.R.N. Hospital, Allahabad, passed an order on 19.11.2001 attaching the petitioner with S. N. Children Hospital, Allahabad and subsequently he passed another order on 20.11.2001 directing Smt. Aamni K. A., Acting Principal Tutor, Nursing Training School to take entire charge of the school from the petitioner Smt. Bani Arora. S. N. Children Hospital, Allahabad is part of S.R.N. Hospital, Allahabad, and both these hospitals are of the Medical College, Allahabad. Learned counsel has submitted that the Additional Director, Medical, Education and Training had passed order on 29.12.2001 by which the aforesaid order of the Principal, Medical College had been stayed and, therefore, the petitioner could not be transferred to the Children Hospital. 10. Learned standing counsel has submitted that by the order dated 4.7.2000, the petitioner had been transferred from Allahabad to Lucknow. She challenged the aforesaid order by filing Civil Misc. Writ Petition No. 37473 of 2000 which was disposed of by the order dated 12.12.2000 with the direction that the petitioner may make a representation before the State Government and till the decision of the representation, she will be allowed to work at Allahabad. It was in these circumstances that the petitioner was not sent away from Allahabad but was posted to the Children Hospital which is part and parcel of S.R.N. Hospital and is attached to the Medical College. The Children Hospital is at a very short distance from the campus of the Medical College. 11. As discussed earlier, the petitioner has no legal right to work as tutor in the Nursing Training School. The Children Hospital is at a very short distance from the campus of the Medical College. 11. As discussed earlier, the petitioner has no legal right to work as tutor in the Nursing Training School. Her substantive post is that of staff nurse and by the order of Director, Medical and Health Services dated 11.5.1999 she had been directed to work in the S.R.N. Hospital, Allahabad and by the subsequent order dated 19.11.2001, the Principal of the Medical College has merely attached her to the Children Hospital, Allahabad. 12. Learned counsel has also submitted that the petitioner has not been paid her salary for certain period. Learned standing counsel has submitted that since the petitioner has not joined duties in the Children Hospital and she is not doing any work and as such she is not entitled to any salary. We are of the opinion that the petitioner should first join her duty in the Children Hospital. After she joins duty and starts work there, she may make a representation to the Director, Medical and Health Services, U. P., for payment of salary which has not been paid to her. If she makes a representation after joining duty in the Children Hospital, the same shall be disposed of by a speaking order, expeditiously, preferable within one month of the filing of a certified copy of this order and the representation before the authority concerned. 13. Subject to the observations made above, both the writ petitions are dismissed.