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2004 DIGILAW 182 (GAU)

Smita Chakraborty v. State of Assam

2004-03-15

P.G.AGARWAL

body2004
JUDGMENT P.G. Agarwal, J. 1. Heard Mr. N. Dhar, learned Counsel for the Petitioner, Mr. Talukdar, learned Govt. Advocate and Mr. B. Baneijee, learned Counsel for Respondent No. 7. 2. The case of the petitioner Smita Chakraborty is that she had joined the post of Auxiliary Nurse-cum-Midwife (for short ANM) in the year 1988 and since then she was working. While she was working as ANM at Karimganj Civil Hospital, she was directed to take charge of the post of Lady Health Visitor (for short LHV) in the said hospital and the Petitioner has, therefore, approached this Court for a direction to the Respondents to pay her the salaries of the post of LHV as she is discharging the duties of LHV. The Petitioner has also prayed for a mandamus directing the Respondent authorities to promote the Petitioner to the post of LHV. 3. The Respondent State has filed an affidavit-in-opposition stating inter-alia that for promotion to a higher post of LHV, an ANM is required to successfully complete the LHV training at RHTC Chabua for a period of six months. As the Petitioner did not undergo or complete the said training her claim for promotion cannot be considered. It is further submitted that the Petitioner was never promoted to the post of LHV and as such the Petitioner is not entitled to any relief. 4. The private Respondent has filed another affidavit-in-opposition stating inter-alia that she was promoted in the year 1993 in the post of LHV after completion of her training as required and she was working at Patharkandi PHC from November 1993 to July2001 and since July2001 she is working at Karimganj Civil Hospital. The private Respondent has, therefore, prayed that there is no scope for regularization of the service of the Petitioner as there is only one post of LHV in Karimganj Civil Hospital and the writ petition is liable to be dismissed. 5. In the writ petition, the Petitioner has claimed promotion to the post of LHV vide Annexure-3 dated 30.6.99. Annexure-3 reads as follows: Office of the Supdt. Karimganj Civil Hospital No. 1190 Dated:30.6.99 To Smti. Usha Chakraborty, L.H.V., Urban Unit, Karimganj Civil Hospital. You are hereby directed to hand over the records and articles of immunization section, Urban Unit, Karimganj Civil Hospital, to Smti. Annexure-3 reads as follows: Office of the Supdt. Karimganj Civil Hospital No. 1190 Dated:30.6.99 To Smti. Usha Chakraborty, L.H.V., Urban Unit, Karimganj Civil Hospital. You are hereby directed to hand over the records and articles of immunization section, Urban Unit, Karimganj Civil Hospital, to Smti. Smita Chakraborty, ANM (FW) Urban Unit, Karimganj Civil Hospital, prior to submission of your departure report in connection with retirement from the service on 30.6.99 (AN). Sd/-Illegible Superintendent, Karimganj Civil Hospital. 6. A bare perusal of the said letter will show that on the retirement of Smti. Usha Chakraborty, the then LHV, the Petitioner was merely asked to receive the records and articles of immunization section. There was no direction to take over the charge or for any promotion of the Petitioner. The Petitioner has not produced any other documents showing that she was promoted to the post of LHV or she was allowed to officiate as LHV at any point of time. The factum that the private Respondent is working as LHV since 2001 has not been disputed or challenged. The Petitioner has produced another certificate issued by the then Superintendent of the hospital, dated 1.3.2002, which reads as follows: TO WHOM IT MAY CONCERN This is to certify that Srimati Smita Chakraborty, A.N.M. is working in Karimganj Civil Hospital with full satisfaction of Superiors since long. Moreover, she is working as LHV since 30.6.99 as per order of Superintendent, Civil Hospital vide No. 1190 dated 30.6.99 She is energetic, very sincere and very punctual in duties. I am fully satisfied for sincere duties as L.H.V. I wish her success in life. Sd/- illegible 1/3/2002 Superintendent, Karimganj Civil Hospital. 7. We find that the contents of the above letter are not true and the Petitioner is not eligible to any relief on the above count. 8. The learned Counsel for the Petitioner has placed reliance on the decision of the Apex Court in the case of Secretary-cum- Chief Engineer v. Hari Om Sharma AIR 1998 SC 2909 . The Apex Court observed 'if a person is put to officiate on a higher post with greater responsibilities he is normally entitled to salary of that post'. 8. The learned Counsel for the Petitioner has placed reliance on the decision of the Apex Court in the case of Secretary-cum- Chief Engineer v. Hari Om Sharma AIR 1998 SC 2909 . The Apex Court observed 'if a person is put to officiate on a higher post with greater responsibilities he is normally entitled to salary of that post'. The Apex Court further observed 'an agreement that if a person is promoted to the higher post or put to officiate on that post or, as in the instant case, a stop-gap arrangement is made to place him on higher post, he would not claim higher salary or other attendant benefits would be contrary to law and also against public policy.' 9. The ratio of law laid down in the above case was followed by this Court in the case of Maibam Dh anew joy Singh v. State of Manipur 2001 (2) GLT 164. 10. The facts in Secretary-cum-Chief Engineer (supra) shows that the person in question was promoted in a stopgap arrangement as a junior engineer-I. However, in the present case as per the Petitioner's own admission, she was never promoted as LHV. 11. The learned Counsel for the private Respondent on the other hand has drawn our attention to a recent decision of the Apex Court in the case of Ramanuj Prasad v. Coal India Ltd. (2003) 10 SCC 152 , wherein it was held: It is undisputed that the Appellant was not promoted to the post of Public Relations Manager but only took charge and was discharging his duties on the said post. In absence of any order of promotion passed in favour of the Appellant to the post of Public Relations Manager, he did not have any legal right to continue to hold the said post and no writ of mandamus therefore could be issued. 12. There is no dispute at the Bar that in order to be promoted to the post of LHV an incumbent is required to successfully undergo the training and no one can be promoted to the post of LHV without such training. The Petitioner before us has admitted that she has not undergone such training and nowhere claimed that she is eligible for promotion to the post of LHV although the Petitioner claims for regularization of her service to the promoted post. 13. The Petitioner before us has admitted that she has not undergone such training and nowhere claimed that she is eligible for promotion to the post of LHV although the Petitioner claims for regularization of her service to the promoted post. 13. In the facts and circumstances of the case, we hold that the Petitioner Smita Chakraborty was never promoted to the post of LHV and she was never directed to hold charge of the post of LHV. The only direction was to receive the records and articles of immunization section from the outgoing LHV on her retirement. Under the circumstances can it be said that the Petitioner is entitled to the higher pay and allowances attached to the post of LHV when the Petitioner is not eligible to hold the post of LHV. If such contingency is allowed an ineligible person will be allowed to continue to hold the charge of higher post and thereby get ail the benefits available to that post although the person is not eligible to hold that post and this will definitely be at the cost of eligible candidates who are waiting for promotion. In our view the decision in Secretary-cum-Chief Engineer (supra) does not provide for such contingencies and no direction can be issued to allow an ineligible person to hold the promotional post or for regularization of service in violation of the rules and regulations governing the matter. 14. The next argument of the learned Counsel for the Petitioner is that she is serving as ANM for the last 15 years and no promotion has been given to her. The Petitioner has placed reliance on the observation of the Apex Court in the case of Dr. Ms. O.Z Hussain v. Union of India AIR 1990 SC 311 , wherein it was observed: This Court, has on more than one occasion, pointed out that provision for promotion increases efficiency of the public service while stagnation reduces efficiency and makes the service ineffective. Promotion is thus a normal incidence of service. There too is no justification why while similarly placed officers in other Ministries would have the benefit of promotion, the non-medical 'A' Group scientists in the establishment of Director General of Health Services would be deprived of such advantage. Promotion is thus a normal incidence of service. There too is no justification why while similarly placed officers in other Ministries would have the benefit of promotion, the non-medical 'A' Group scientists in the establishment of Director General of Health Services would be deprived of such advantage. In a welfare State, it is necessary that there should be an efficient public service and, therefore, it should have been the obligation of the Ministry of Health to attend to the representations of the Council and its members and provide promotional avenue for this category of officers. It is, therefore, necessary that on the model of rules framed by the Ministry of Science and Technology with such alternatives as may be necessary, appropriate rules should be framed within four months from now providing promotional avenue for the 'A' category scientists in the nonmedical wing of the Directorate 15. The Petitioner has claimed that she has filed two representations for deputing her for undergoing training. This has been specifically denied by the Respondents in their affidavit-in-opposition and it is stated that no representation was received from the Petitioner showing her willingness to undergo her training and it is further stated that her case for sending her for training shall be considered. 16. This is not a case where no promotional avenue is available as stated by the counsel for the private Respondent. The Petitioner's seniority stands at serial No. 81. Moreover she does not possess the requisite eligibility/qualifications of training as LHV. Under the circumstances no direction for regularization of the service of the Petitioner can be given more so, when the post of LHV at Karimganj Civil Hospital is being held by a regularly appointed person Respondent No. 7. 17. In the result, the writ petition stands dismissed. The Petitioner is not entitled to any higher salary or for a direction for regularization of her services as LHV. The Petitioner will be at liberty to file application for undergoing LHV training, if she so desires and as and when such application is filed, the Respondent authorities shall take necessary steps for deputing the Petitioner for such training. 18. The interim order passed on 8.11.2002 stands vacated. Petition dismissed.