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2016 DIGILAW 176 (JK)

Gulshan Akhtar v. State of J&K

2016-04-06

MUZAFFAR HUSSAIN ATTAR

body2016
JUDGMENT : Muzaffar Hussain Attar, J. Petitioner was appointed as Junior Grade Nurse in the Government Medical College, Srinagar (for short GMC). She has undergone Diploma Course in Nursing Education and Administration at Lady Reading Health School, New Delhi. The Principal Ancillary Medical Training School, Srinagar (for short "AMT") way back in 2005 requested the Principal GMC, Srinagar for providing additional staff as there was dearth of teaching staff in the Ancillary Medical Training School, Srinagar. 2. The Medical Superintendent, LD Hospital, Srinagar addressed communication dated 10th August, 2005 to the Principal GMC, Srinagar and informed him that no eligible candidate was available for being promoted on the post of Tutor or Public Health Nurse because none of the persons was having Diploma in Nursing Education and Administration. 3. In view of the request of the Principal Ancillary Medical Training School, Srinagar, and to overcome the dearth of teaching staff in the School and for the reasons that no eligible candidate was available, the petitioner in view of her qualifications was adjusted in the Ancillary Medical Training School, Srinagar vide Order dated 23rd November, 2005 by the Principal GMC, Srinagar. This position is supported by communication dated 10th August, 2005 of Medical Superintendent, LD Hospital, Srinagar and Order of the Principal GMC, Srinagar dated 23rd November, 2005. 4. The Principal AMT, School, Srinagar vide his communication dated 16th April, 2007 addressed to the Principal, GMC, Srinagar informed him that there is sanctioned strength of 09 (nine) posts of Sister Tutors in the pay-scale 6700-10700. It was also informed in the said communication that out of total strength, 07 (seven) posts are filled up and 02 (two) posts are held by two migrants. It was also mentioned in the said communication that the petitioner is holding the pay-scale of Rs. 4000-6000, Junior Grade Nurse. It was also mentioned that the Tutor as per the Indian Nursing Council (INC) must have to its credit M.Sc. Nursing/B.Sc. Nursing/Diploma in Nursing Education and Administration. 5. It may not be out of place to mention here that the petitioner is presently holding the post of Senior Grade Nurse. The petitioner filed representation with the request that she be appointed by way of promotion on the post of Tutor or Public Health Nurse. Nursing/B.Sc. Nursing/Diploma in Nursing Education and Administration. 5. It may not be out of place to mention here that the petitioner is presently holding the post of Senior Grade Nurse. The petitioner filed representation with the request that she be appointed by way of promotion on the post of Tutor or Public Health Nurse. The further documents placed on the writ record would show that the Principal AMT, School, Srinagar forwarded the representation of the petitioner dated 26th July, 2012 with the remarks that the petitioner is fulfilling the requisite criteria for being promoted on the post of Tutor. It is also stated in the said recommendation that she is competent/efficient teacher and has gained lot of teaching experience from the time she was allowed to work in AMT School, Srinagar against one of the available vacancy of Tutors. It is also stated therein that the petitioner is drawing the salary against the available vacancy. 6. Petitioner has placed on record the copy of the order bearing No. AH-9/217 of 2004, dated 30-01-2004, where under, on the recommendation of the Departmental Promotion Committee (Non-Gazetted), sanction was accorded to the confirmation of promotion of Junior Grade Nurses (4000-6000) against the post of B.Sc. Nurses in the pay-scale of 6500-10500. Four candidates were promoted from Junior Grade Nurses to B.Sc. Nurses. This order was issued on 30th January, 2004. 7. Learned counsel for the petitioner produced the Government Order No. 26-HME of 2006, dated 19-01-2006 to indicate that the posts of B.Sc. Nurses is teaching post. Perusal of the said Government Order would show that the post of B.Sc. Nurses Grade and Sister Tutor are teaching posts. Copy of the said Government Order along with the annexure is taken on record. 8. The Principal AMT School, Srinagar, forwarded its recommendations for appointment of the petitioner in the AMT, School, Srinagar having not found favour with the respondents, constrained the petitioner to file this writ petition. 9. Respondents in the reply affidavit have joined issue about the claim of the petitioner on the ground that she is not eligible for being promoted on the post of Sister Tutor as she belongs to the different cadre of service. Reliance is placed on Government Order dated 19th January, 2006 supra. 10. 9. Respondents in the reply affidavit have joined issue about the claim of the petitioner on the ground that she is not eligible for being promoted on the post of Sister Tutor as she belongs to the different cadre of service. Reliance is placed on Government Order dated 19th January, 2006 supra. 10. The petitioner was adjusted in AMT School, Srinagar though in her own pay and grade with further condition that she will not claim for adjustment against higher post in AMT School, Srinagar. The petitioner has been working in the AMT School, Srinagar ever since November, 2005, she is possessed of requisite qualification. Before issuing the Government order dated 19th January, 2006 supra, the respondents have already promoted Junior Grade Nurses to the post of B.Sc. Nurses in terms of order dated 30th January, 2004 (Annexure-H of the writ petition). This order was issued prior to the issuance of Government Order dated 19th January, 2006, and at that time even Junior Grade Nurses were being promoted on the post of B.Sc. Nurses, a teaching post. The petitioner having been adjusted prior to the issuance of Government order dated 19th January, 2006 in the AMT School, Srinagar has to be given same and similar treatment as has been given to the persons mentioned in Government Order dated 30th January, 2004. She is substantively holding the post of Senior Grade Nurse and has been working as Sister Tutor in AMT School, Srinagar. 11. Denial of consideration to the claim of the petitioner for her appointment by way of promotion on the post of Sister Tutor in the aforesaid fact situation has violated the Constitutional rights guaranteed to the petitioner under Article 14 and 16 of Constitution of India. Even, in terms of the Government Order dated 19th January, 2006, she is substantively holding the post of Senior Grade Nurse and has more than five years of service. She as per the certificate given by the Principal AMT School, Srinagar has gained experience as a member of teaching faculty and her performance has remained up to the mark. 12. The petitioner has to be in the light of the promotion order dated 30th January, 2004 given same and similar treatment which has been given to the persons mentioned in the above said promotion order. 12. The petitioner has to be in the light of the promotion order dated 30th January, 2004 given same and similar treatment which has been given to the persons mentioned in the above said promotion order. Since the petitioner is already holding post of Senior Grade Nurse, her claim for promotion on the post of Sister Tutor against which she is working for more than five years, has to be allowed. She cannot be subjected to discrimination. 13. As already stated that the petitioner has to be governed by the norms which existed before the issuance of Government order dated 19th January, 2006 and benefit of already existing norms has to be given to her. 14. Violation of guarantees contained in Article 14 and 16 of Constitution of India, are writ large on the face of record. 15. For the above stated reasons, this writ petition along with connected CMP(s) is disposed of in the following manner: Respondents 1 and 2 are directed to accord consideration to the claim of the petitioner for being appointed by way of promotion on the post of Sister Tutor in AMT School, Srinagar. The respondents to pass order of appointment by way of promotion in favour of the petitioner and promote her on the post of Sister Tutor. The necessary steps for complying with the aforesaid direction be initiated and concluded within four weeks from the date copy of this order is served. Disposed of as above.