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Madhya Pradesh High Court · body

2013 DIGILAW 882 (MP)

Anjana Mathur v. State of M. P.

2013-07-31

K.K.TRIVEDI

body2013
JUDGMENT K.K. Trivedi J:- The petitioner, who was working as Sister Tutor in the Health Services of the Government of Madhya Pradesh, has approached this Court by way of filing this writ petition under Article 226 of the Constitution of India seeking direction to consider and promote the petitioner on the post of Senior Sister Tutor. It is contended that the petitioner was working on the post of Sister Tutor on which post she was promoted on 29.06.2000. After assuming the duties, she has sincerely, honestly and with devotion discharged the duties but was not being considered for promotion on the post of Senior Sister Tutor according to her seniority. The petitioner made a request before the respondents on 16.12.2003 for such promotion but by order dated 21.12.2004, her request has been turned down saying that the petitioner was not possessing the degree of Bachelor of Science (Nursing) and, therefore, was not eligible for such promotion. The petitioner in fact has passed the General Nursing Examination way back in the year 1969, has obtained a Diploma in Public Health Tutor in 1978 and was having continuous working experience on the said post, which according to the petitioner qualified her for promotion on the post of Senior Sister Tutor. In the norms prescribed by the respondents it is contended that if a B.Sc. (Nursing) qualified candidate is not available, a diploma in Nursing and Administration or teaching and administrative experience would be sufficient for consideration for promotion. That being so, since the petitioner was having long experience of working, was possessing the Diploma in Public Health Tutor and General Nursing Examination Certificate, she should have been considered for promotion. Such rejection of the claim of the petitioner is, thus, bad in law, therefore, petitioner would be entitled to grant of benefit of promotion on the post of Senior Sister Tutor. It is further contended that the petitioner has officiated on the said post as nobody was working as Senior Sister Tutor and, therefore, before her superannuation, she should be granted a regular promotion on the said post. 2. It is further contended that the petitioner has officiated on the said post as nobody was working as Senior Sister Tutor and, therefore, before her superannuation, she should be granted a regular promotion on the said post. 2. Upon service of the notice of the writ petition, the respondents have filed the return contending inter alia that though there are no specific rules framed in the Medical Education Department relating to promotion of the employees but the norms prescribed by the Indian Nursing Council are made applicable and unless a candidate is fulfilling the norms prescribed by the Indian Nursing Council, he/she is not to be granted such promotion. It is contended that the petitioner has not performed the duty as Senior Sister Tutor as she was only given the charge of the said post for the purposes of relieving somebody. That itself does not mean that the petitioner was made to work against the post of Senior Sister Tutor. It is further contended that merely because the petitioner has obtained a Diploma in Nursing and Administration, that itself would not be enough to grant promotion on the post of Senior Sister Tutor in view of the fact that the petitioner is not fulfilling the norms prescribed by the Indian Nursing Council. However, nothing is said by the respondents as to why Rules were not framed and in absence of Rules, how the claims for promotion were being considered in the Department. It is, however, contended that the consideration of representation of the petitioner was done on the anvil of the norms prescribed by the Indian Nursing Council and since the petitioner was not having the qualification of B.Sc. in Nursing, her claim was rightly rejected. Thus, it is contended that the petition being wholly misconceived, is liable to be dismissed. 3. By filing a rejoinder, the petitioner has brought on record the fact that the respondents have made the Rules governing the services in the Public Health Department. The said Rules have been enforced on 30th April, 1988 on their publication in the Gazette of Madhya Pradesh. Specific conditions for appointment on nursing post have been prescribed in the said Rules. By filing a rejoinder, the petitioner has brought on record the fact that the respondents have made the Rules governing the services in the Public Health Department. The said Rules have been enforced on 30th April, 1988 on their publication in the Gazette of Madhya Pradesh. Specific conditions for appointment on nursing post have been prescribed in the said Rules. The Medical Education Department was also part and parcel of the Public Health Department before its bifurcation and in case the Rules are not made in the Medical Education Department, the norms prescribed by the State Government in the Rules of Public Health Department would be applicable in case of consideration of claim for promotion. It is emphatically contended that in Schedule-IV a channel of promotion is prescribed from Sister Tutor Class-III to the post of Senior Sister Tutor and for the said purposes, no educational qualifications are prescribed. Only five years of service is prescribed for promotion on the said post. Of course for the Sister Tutor Class-III another channel of promotion is prescribed on the post of Senior Training Officer (MPW)/Principal, Promotee School, Jabalpur/Principal, Family Health Worker Training School. For such promotion it is prescribed that five years service experience of only those Sister Tutors, who have B.Sc. Nursing or Diploma in Public Health or Nursing Education or Nursing Administration is necessary. It is again contended that even for such post the educational qualifications insisting on are not specifically B.Sc. Nursing but Diploma in Public Health or Nursing Education or Nursing Administration would be sufficient for consideration of such candidate for promotion on aforesaid senior post. Thus, it is contended that if these are the norms prescribed in the Rules, it cannot be said that petitioner was ineligible to be given promotion. If there are statutory Rules framed in exercise of power under proviso to Article 309 of the Constitution of India, the same will prevail. The insistence of the department for consideration of the cases of only those, who were fulfilling the norms of the Indian Nursing Council alone would not be justified. No additional return has been filed to explain these facts by the respondents. 4. Heard learned Counsel for the parties at length and perused the record. 5. The insistence of the department for consideration of the cases of only those, who were fulfilling the norms of the Indian Nursing Council alone would not be justified. No additional return has been filed to explain these facts by the respondents. 4. Heard learned Counsel for the parties at length and perused the record. 5. It is nowhere stated by the respondents in their return that they have formulated any statutory service rules governing the services of the employees and officers working in the Medical Education Department. However, it is also not their case that the regulations framed by the Indian Nursing Council alone will hold the field and the rules made by them for governing the services of counterpart of the petitioner in other department would not be applicable. It is also not the case of the respondents that the Rules in the Public Health Department were framed before the making of regulations by the Indian Nursing Council. Even the adoption of the norms prescribed by the Indian Nursing Council has not been placed on record by the respondents. It is to be seen whether a similarly situated person working in Public Health Department would be entitled to grant of promotion even if he or she is not fulfilling certain norms prescribed by the Indian Nursing Council. The power under Article 309 of the Constitution of India is to be exercised for making the Act and the laws by the State for governing the services of the employees of the State. The proviso added to Article 309 of the Constitution of India is only enabling clause where the State can exercise the legislative powers to make the rules for the purposes of governing the services of its employees till the laws are made by the Legislative Assembly by passing the Act. That being so, the Rules which ultimately culminated in an Act of the Legislature would have much more force in law than the norms prescribed in any regulations made by the Indian Nursing Council for the purposes of giving guidance as to how recruitment in the Nursing services are to be made. Therefore, it is clear that insistence of the respondents on adoption of the norms of the Indian Nursing Council cannot be said to be right action on the part of the respondents. Therefore, it is clear that insistence of the respondents on adoption of the norms of the Indian Nursing Council cannot be said to be right action on the part of the respondents. In fact it is the practice in the State that if for any particular department service rules are not framed, the service rules framed for the similar services or post by the other department are adopted for the purposes of governing the services of the department where the rules are not framed. Moreover, it is not made clear as to what was the purpose of making or prescribing the norms by the Indian Nursing Council. Whether the same was with an object to only grant registration to the Nursing persons in the Council or the same was made mandatory to be followed by all States for the purposes of constituting Nursing services within the State. That being so, the respondents should have taken care to adopt the rules of the Public Health Department rather than insisting on the norms of the Indian Nursing Council, in the matter of promotion of Nursing Sisters. 6. The Rules of 1988, placed on record, leave no doubt where the classification of the post has been done. There are three groups in the Public Health Department services. Group-A deals with the services concerning medical, Group-B deals with the services concerning non-medical and Group-C deals with the nursing services. In the nursing services, there are specific posts of Sister Tutor and Senior Sister Tutor. For the post of Sister Tutor, which is to be filled in by direct recruitment, specific provisions are made relating to educational qualification. The graduate in Science subject preferably in Nursing or those having passed certificate course of General Tutor along with 5 years experience, duly registered as Nursing Midwife with the Nursing Council, are said to be eligible to be appointed on the post. If such persons have put in 5 years of service, they become eligible to be considered for Senior Sister Tutor, General Nursing Center of the Public Health Department. There is no insistence that they must be having a degree of Bachelor of Science with Nursing subject. Similarly, a Sister Tutor Class-III can be promoted as Senior Nursing Officer/Principal, Promotee School/Principal, Family Health Worker Training School with 5 years experience and having Diploma in Public Health or Nursing Education or Nursing Administration. There is no insistence that they must be having a degree of Bachelor of Science with Nursing subject. Similarly, a Sister Tutor Class-III can be promoted as Senior Nursing Officer/Principal, Promotee School/Principal, Family Health Worker Training School with 5 years experience and having Diploma in Public Health or Nursing Education or Nursing Administration. Again there is no insistence that even for such higher post, the Bachelor Degree in Science with Nursing or a Post Graduate Degree of Science with Nursing subject would be essential qualification for such promotion. Since it is not contended by the respondents that the rules were made before coming into force of any such norms of the Indian Nursing Council and the rules needs to be amended, in terms of the prescription of norms prescribed by the Indian Nursing Council, it has to be held that same provision still holds field in the matter of promotion of counterparts of the petitioner serving in the Public Health Department. Thus, it will grossly unjustified if the petitioner is denied consideration for promotion on the post of Senior Sister Tutor, on the lame excuse that she is not possessing the qualification as prescribed by the Indian Nursing Council. Such a stand of the respondents, thus, cannot be accepted. 7. Having considered so, it has to be held that the petitioner was entitled to be considered for promotion as Senior Sister Tutor. Since now the petitioner would have attained the age of superannuation as she was 59 years of age in the year when the writ petition was filed and would have retired from service by now, it would be proper to command the respondents to hold a review D.P.C., consider the case of the petitioner for promotion on the post of Senior Sister Tutor on the date she has completed 5 years of service on the post of Sister Tutor, i.e. with effect from the year 2005 itself. In case the petitioner is found fit for such promotion, let necessary orders be issued promoting her on the post of Senior Sister Tutor with retrospective effect. Needless to say, in case the petitioner is found fit for grant of such promotion as her fundamental right of consideration for promotion was denied illegally by the respondents, the petitioner would be entitled to all the consequential benefits of such promotion, such as pay, allowances and seniority. Needless to say, in case the petitioner is found fit for grant of such promotion as her fundamental right of consideration for promotion was denied illegally by the respondents, the petitioner would be entitled to all the consequential benefits of such promotion, such as pay, allowances and seniority. Let the aforesaid exercise be completed within a period of four months from the date of receipt of copy of the order passed today. 8. The writ petition is allowed to the extent indicated herein above. However, there shall be no order as to costs.