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Gauhati High Court · body

2005 DIGILAW 506 (GAU)

Yendrembam Sunita Devi v. Yendrembam Sunita Devi

2005-07-06

M.B.K.SINGH

body2005
These two cases being WP(C) No. 940 of 2002 and WP(C) No. 334/2005 relate to filling up of the post of Principal, Family Health Worker Training School, Lamphel and they are proceeded jointly. 2. I have heard Mr. H.S. Paonam, learned counsel appearing on behalf of the petitioner of WP(C) No. 334 of 2005 and private respondent of WP(C) No. 940 of 2002, Mr. N. Kotiswar, learned counsel appearing on behalf of the petitioner in WP(C) No. 940 of 2002 and private respondent of WP(C) No. 334 of 2005 and Mr. Asok Potsangbam, learned Advocate General, Manipur and Mr. Joychandra, learned counsel appearing on behalf of the respondents in the two cases. The materials before the court are also perused. 3. The following facts are ascertained:- That the said post of Principal, Female Health Worker Training School, Lamphel became vacant in the year 1999 consequent upon retirement of the then Principal, Smt. H. Varchong on superannuation with effect from 30.4.1999. Then, on 13.5.99, an order being No. 1/9/85-M(Misc.) Pt(FW) was issued by the Deputy Secretary, Govt. of Manipur in the name of the Governor of Manipur allowing Smt. Y. Sunita Devi, Sister Tutor, who is the private respondent No. 5 in WP(C) No. 334/2005 and the petitioner in WP(C) No. 940 of 2002, to work as Principal in-charge of the said training school to look after the routine works of the Principal purely as a stop-gap arrangement until further order purportedly with reference to this court's order dated 29.4.99 passed in WP(C) No. 446 of 1999. A copy of the said Government order dated 13.5.1999 is at Annexure - P/10 and a copy of the courts order dated 29.4.1999 is at Annexure- P/9 of the affidavit-in-opposition filed on behalf of the said Sunita Devi in WP(C) NO. 334 of 2005. At the relevant time when the said post of Principal became vacant, under the then existing recruitment rules of 1985, the post of Sister Tutor and not the post of Public Health Nurse was in the feeder post for promotion to the said post of Principal. The Government amended the R.R. of the post of Principal vide notification No. 1/40/84-RR/DP dated 5.4.2002, which was published in Manipur Gazette. Extraordinary on 6.4.2002, thereby including the post of Public Health Nurse in the feeder post for promotion to the said post of Principal. The Government amended the R.R. of the post of Principal vide notification No. 1/40/84-RR/DP dated 5.4.2002, which was published in Manipur Gazette. Extraordinary on 6.4.2002, thereby including the post of Public Health Nurse in the feeder post for promotion to the said post of Principal. As per the terms of the said new R.R., they shall come into force with effect from the date of publication in the Manipur Gazette. On 24.6.2002, the Government issued a transfer and posting order, inter-alia, for utilization of the said Sunita Devi as Public Health Nurse instructor at R.H. & Family Welfare Training Centre, Porompat instead of in-charge Principal and for posting Smt. N. Tangbi Devi, who is the petitioner in WP(C) No. 334 of 2005 and the private respondent in WP(C) No. 940 of 2002, as in-charge Principal of the said training school. When the said transfer and posting order was challenged by the said Sunita Devi , this court passed an order on 26.6.2002 in WP(C) NO. 747/2002 directing the Government not give effect to it. Thereafter, the Government issued an order dated 2.7.2002 cancelling the said transfer and posting order with immediate effect in compliance with the said order of this court . On 11.7.2002, the Government issued an order removing the said Sunita Devi from being in-charge Principal of the said training school and allowing her to remain as Sister Tutor only purportedly in contemplation of a departmental enquiry as against her. Thereafter, on 15.7.2002, the Government issued an order directing the said Tangbi Devi to hold the current charge of Principal of the Training school with immediate effect until further order. On 15.7.2002, this court , with reference to an application field by one I. Nalini Devi in connection with the filling up the said post of Principal, took a tentative view that the said post was to be filled up as per the old R.R. and made direction to the authority to fill up the vacant post in accordance with the relevant service rules after due application of mind. Since 15.7.2002, the said Smt. Tangbi Devi has been in-charge Principal of the said training school. Since 15.7.2002, the said Smt. Tangbi Devi has been in-charge Principal of the said training school. The said Sunita Devi was placed under suspension vide Government order dated 27.9.2002 and the suspension order was revoked by the Government vide order dated 13.6.2003 with the direction that her service would be utilized as an O.S.D. in the Directorate of Family Welfare Department. The departmental proceedings as against the said Sunita Devi was also closed on 16.10.2003 after exonerating her of the charges of misconduct. Just some days before closure of the said departmental proceedings, the said Tangbi Devi obtained an order from this court dated 5.9.2003 in WP(C) No. 255/2003 thereby directing the authorities to consider her case, if she is in the consideration zone for appointment as Principal, Female Health Worker Training School, Lamphel in terms of the recruitment rules, 2002. While giving the said directions, the court observed that it should not be treated as a mandamus of the court. On filing a review petition being No. 21 of 2003 by the said Sunita Devi , the same court passed an interim order directing that the Government might filled up the said vacant post as per rules applicable subject to the final order that might be passed in the review petition. 4. It is, thus, ascertained that though the said post of Principal, Female Health Worker Training School, Lamphel became vacant in the year 1999, it has not been filled up on regular basis. In WP(C) No. 334/2005, the said Tangbi Devi is praying for an appropriate writ so as to fill up the said post of Principal, a direction to the concerned respondents to finalize fixation of inter-se seniority amongst Sister Tutor, Public Health Nurse and Public Health Nurse Inspector of Family Welfare Department and also for allowing her to continue to hold the charge of Principal of the said training school till the post is filled up on regular basis without any disturbance. In WP(C) No. 940 of 2002, the said Sunita Devi is praying for quashing the said order dated 11.7.2002 by which she was removed from being in-charge Principal and allowing her to remain as Sister Tutor and the order dated 15.7.2002, by which the said Tangbi Devi was required to take charge of Principal of the said training school immediately. In C. Misc. Appln. In C. Misc. Appln. No. 100 of 2004 filed with reference to WP(C) No. 940 of 2002, the said Sunita Devi is praying for allowing her to hold the charge of Principal of the said training school in terms of the order dated 29.4.99 passed in WP(C) No. 446 of 1999 consequent upon the revocation of her suspension and dropping of charges against her. 5. It is already seen that the said post of Principal, Female Health Worker Training School, Lamphel became vacant consequent upon retirement of the then Principal on superannuation w.e.f. 30.4.1999. In these situations, the relevant R.R. applicable for filling up the said vacant post is the rule in existence on 30.4.1999 i.e. the recruitment rule of 1985 and not the subsequently amended one in 2002. In Y.V. Rangaiah and ors. v. J.Srinivas Rao and ors. ; AIR 1983 SC 852 , the Supreme Court held “ the vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules…………………………………………………………………………………… ………………………………………………………………………………………… …………………………………………. But the question is of filling the vacancies that occurred prior to the amended rules. We have not the slightest doubt that the post which fell vacant prior to the amended rules would be governed by the old rules and not by the new rules.” 6. In the light of the above decision, the new R.R. of 2002 will be applicable only in respect of filling up of vacant posts of Principal arising after enforcement of the new R.R. There is no dispute that the post of Public Health Nurse is not the feeder post for promotion to the said post of Principal under the recruitment rule of 1985 and as such, the said Tangbi Devi, whose substantive post is Public Health Nurse, is not eligible for consideration for promotion in respect of the said vacant post of Principal under the relevant R.R. of 1985. On the other hand, the said Sunita Devi , whose substantive post is Sister Tutor, is holding the feeder post for promotion to the post of Principal under the said relevant R.R. of 1985 and as such, she is entitled to be considered for promotion to the said post. 7. On the other hand, the said Sunita Devi , whose substantive post is Sister Tutor, is holding the feeder post for promotion to the post of Principal under the said relevant R.R. of 1985 and as such, she is entitled to be considered for promotion to the said post. 7. In the light of the above said finding and in the context of filling up of the vacant post of Principal, Female Health Worker Training School, Lamphel, I am not inclined to grant any of the prayers made by the said Smt. Tangbi Devi in WP(C) No. l 334 of 2005. On the other hand, since the said Sunita Devi is eligible for consideration for giving promotion to the said vacant post of Principal under the relevant R.R., since she was holding the said post of Principal on in-charge basis before allowing her to remain only as Sister Tutor vide order passed on 11.9.2002, since her suspension from service has been revoked and since she has been exonerated from the charges because of which she was not allowed to hold the charge of Principal, the concerned respondents shall consider her case along with the cases of other eligible persons , if any, at the time of consideration for filling up the said post of Principal on regular basis. Further, in the facts and circumstances, if the said post of Principal is not going to be filled up on regular basis in the near future, it will be reasonable, fair and just on the part of the concerned Government respondents to consider the case of the said Sunita Devi for allowing her to hold the said post on in-charge basis instead of allowing someone who is not eligible to hold the post, to continue to hold the post for an indefinite period. In this connection, the concerned Government respondents will have to take all the necessary steps in accordance with law. 7. With the above directions, these two writ petitions are hereby disposed of.