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2011 DIGILAW 961 (GAU)

Saraf Uddin Barbhuiya v. State of Assam and Ors.

2011-12-07

ANIMA HAZARIKA

body2011
1. Challenge in this writ petition is made against the order of promotion dated 11.8.2008, whereby and whereunder, the Director of Health Services, Assam, Hengrabari, promoted the respondent No. 6 from the post of Grade IV in the office of the Joint Director of Health Services, Hailakandi to the post of Dresser in the scale of pay of Rs. 2610-49-2770-60-3200-EB-60-3490-90-4480 per month plus other allowances as admissible under rules on purely temporary basis and until further order with effect from the date of joining as Dresser against the vacant post of Dresser vice Shri Sujit Kr. Nath, Dresser promoted to the higher post. However, in the order of promotion dated 11.8.2008, the respondent No. 2, i.e., the Director of Health Services, Assam. Hengrabari has observed as follows : - "The promotion has been made in the strength of the Jt. Director of Health Services, Hailakandi Memo No. 3193 Dated 8.7.2008." 2. Heard Mr. B. Banerjee, learned counsel for the petitioner. Also heard Mr. D. Saikia, learned Senior Standing counsel. Health Department, Assam, assisted by Mr. B. Gogoi, learned Standing counsel, Health Department Assam appearing for respondent Nos. 1 to 5 and Mr. P.D. Nair, learned counsel for respondent No. 6. 3. The factual matrix of the case is narrated hereinbelow : The petitioner herein being qualified and eligible, after due selection along with other eligible candidates was appointed to the post of Grade IV in the scale of pay of Rs. 370-5-420-7-490 by the order of the Chief Medical and Health Officer, Cachar, Silchar dated 25.3.1985 and joined in the said post on 30.3.1985 at Kalinagar Public Health Centre, Cachar, whereof the petitioner was confirmed in the Grade IV post w.e.f. 1.12.2000 vide order dated 22.10.2001 issued by the Joint Director of Health Services, Hailakandi. Thereafter a gradation list of Grade IV staff along with Sweeper was issued on 1.12.2004, wherein the name of the petitioner appeared at SI. No. 26 whereas the name of the respondent No. 6 appeared at SI. No. 62. Thereafter a gradation list of Grade IV staff along with Sweeper was issued on 1.12.2004, wherein the name of the petitioner appeared at SI. No. 26 whereas the name of the respondent No. 6 appeared at SI. No. 62. The petitioner being senior to the respondent No. 6, he ought to have been promoted to the post of Dresser considering the length of service and experience in dressing, injection pushing I-V and I-N, stitching and catheterization but without considering the above, the respondent No. 6 was promoted to the post of Dresser and the legality and validity of the said promotion order dated 11.8.2008 has been questioned in the writ petition. 4. Mr. Banerjee, learned counsel appearing for the petitioner would contend that admittedly the petitioner is senior to the respondent No. 6 though in the gradation list in the remark column it has been written "experience in dressing work" in case of the respondent No. 6 and the basis of writing as experience in dressing work has not been divulged though the transfer order of both the petitioner and the respondent No. 6 along with the experience certificates annexed with the petition along with the rejoinder would show that the petitioner is not less experienced in dressing works than that of respondent No. 6, thus requiring interference with the impugned order of promotion under judicial review in exercise of power under article 226 of the Constitution of India. 5. Mr. Banerjee would further contend that the impugned order of promotion would indicate that the respondent No. 6 was promoted on the strength of the Joint Director of Health Services, Hailakandi Memo No. 3193 dated 8.7.2008 which implies that here was no interview held for promotion to the higher cadre amongst all the eligible candidates. Mr. Banerjee would contend that admittedly there is no Service Rules regulating the service conditions of grade IV staff under the Directorate of Health Services, Assam and, therefore, the seniority along with experience should have been counted while promoting a junior employee of the department. Thus, violating article 14 of the Constitution of India, the impugned transfer order had been issued, which cannot be allowed to stand, the same being not sustainable in law. 6. Criticizing the argument advanced by Mr. Banerjee, Mr. Thus, violating article 14 of the Constitution of India, the impugned transfer order had been issued, which cannot be allowed to stand, the same being not sustainable in law. 6. Criticizing the argument advanced by Mr. Banerjee, Mr. P.D. Nair, learned counsel representing the respondent No. 6 would contend that the respondent No. 6 was appointed as a General Duty Attendant in Grade IV vide order dated 8.6.1990 and he has all along been assigned duties in the dressing room of the casualty Department of Hailakandi Civil Hospital and had all along been engaged in clinical works in the said hospital. The respondent No. 6 has been assisting the doctors and the dresser in the dressing room and operation theatre whereas the certificate annexed in the writ petition relating to the experience certificate of the writ petitioner does not disclose the name of the person as to who had issued the certificate and it is a purported certificate of a date subsequent to the order of promotion and, hence, could not be relied upon and as such the promotion order of the respondent No. 6 is not required to be interfered with, more so, when the certificates enclosed in the affidavit-in-opposition demands greater weightage as to the experience of the respondent No.6 as Dresser, which have rightly been considered while promoting the respondent No. 6. 7. On the other hand, the learned Standing counsel, Health, representing the official respondents would urge that the record would show that the promotion to the post of Dresser from Grade IV post is offered only on the basis of experience in any of the surgical units of any hospital and the respondent No. 6 having earned more experience than the petitioner, he was preferred to the petitioner and accordingly respondent No.6 was promoted though there is no Service Rules relating to promotion to the post of Dresser from the post of Grade IV employees and in absence of Service Rules, the Directorate of Health Services made a criteria that any employee rendering services of Grade IV for more than 5 years and earning experience in surgical matters is eligible for promotion and the respondent No. 6 having earned more experience in surgical matters than the writ petitioner, he has been promoted to the post of Dresser which do not come under judicial review in a writ proceeding. 8. 8. Considered the arguments advanced by the contesting parties. Perused the pleadings of the parties along with the records submitted by the learned Standing counsel, Health Department. The court directed the learned Standing counsel, Health to produce the communication of Joint Director of Health Services, Hailakandi bearing Memo No.3193 dated 8.7.2008, mention of which has been made in the impugned promotion order. As per direction of this court, during the course of hearing, Mr. Gogoi has produced a letter dated nil, addressed to the Director, Health Services, Assam through proper channel by the respondent No. 6 praying for promotion to the post of Dresser. Perusal of the same would reveal that the said letter has been received by the Superintendent S.K. Roy Civil Hospital, Hailakandi who has forwarded the same vide No. 759 dated 17.6.2008 to the Joint Director of Health Services, Hailakandi. The Joint Director of Health Services sent the same vide No. 3193 dated 8.7.2008 which has been reflected in the impugned order of promotion of the respondent No. 6 dated 11.8.2008 as mentioned hereinabove, which implies that the respondent No. 6 has been favoured in exclusion of all other eligible candidates without adhering the seniority in absence of Service Rules vis-a-vis, the eligibility requirement for promotion from Grade IV to the next higher grade and on this ground alone the impugned order under challenge is required to be interfered with which the court hereby do. 9. In the result the writ petition succeeds. The impugned order of promotion dated 11.8.2008 issued by the Director of Health Services, Assam. Hengrabari promoting respondent No. 6 to the post of Dresser is hereby set aside and quashed. The parties are left to bear their costs. 10. Before parting with the judgment, the court would like to observe that Grade-IV employees of Director of Health Services, Assam, are facing a very uncertain situation because the Rules regulating their service conditions are yet to be framed. Therefore, the court deems it fit to direct the concerned authority to frame Rules regulating the service conditions of Grade IV employees of Director of Health Services, Assam, as expeditiously as possible, preferably within a period of 6(six) months from the date of receipt of the certified copy of this order. 11. The court hopes and trusts that the authority would frame the Rules within the period aforementioned.