IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11.02.2011 CORAM: THE HONOURABLE MR.JUSTICE VINOD K.SHARMA W.P.No.22489 of 2009 R.Chandra .. Petitioner. Vs. 1. The Director of Medical Education, Poonamallee High Road, Kilpauk, Chennai 2. The Director of Medical & Rural Welfare Services, DMS Campus, Teynampet, Chennai 600 006. .. Respondents. Writ petition is filed under Article 226 of Constitution of India for the issuance of a writ of Certiorarified Mandamus, calling for the records relating to the impugned order of the second respondent made in L.Dis.No.37961/N2/1/09 dated 30.07.2009 and quash the same and consequently, direct the respondents to consider the petitioner's claim for promotion to Grade-I (Nursing Tutor) under the panel framed for Grade-I promotion of the year 2005-2006 bearing Ref.No.87410/N2/2006 dated 10.01.2007, issued by the first respondent with all the consequential benefits, refixation of seniority and further promotion. For Petitioner : Mr.K.S.Narayanan For Respondents : Mr.B.Vijay Govt. Advocate O R D E R
The petitioner joined as staff nurse in Government General Hospital, Chennai on 25.10.1976 and was regularized as staff nurse on 13.11.1978 on completion of probation period. The petitioner completed B.Sc. Nursing course in the year 1992 and was assigned Civil Nursing List (CNL) No.3260.
2. The petitioner applied for leave and went abroad in the month of December 1994 and was there till February, 1999. The petitioner was not allowed to join duty, as she was unauthorisedly absent from duty. However, vide order 15.02.1999, the petitioner was allowed to resume her duty subject to outcome of disciplinary action, which was proposed against her. The petitioner was found guilty of charge of unauthorized absence and accordingly, was awarded punishment of stoppage of increment with cumulative effect for four years.
3. The petitioner accepted the punishment, awarded to her. After expiry of punishment period, unauthorized absence of the petitioner was regularized as extra ordinary leave without pay and allowances. The cadre of nursing staff under rule consists of:
i) Assistant to Director of Medical services and Family Welfare nursing;
ii) Nursing Superintendent Grade I & II;
iii) Nursing Tutor Grade I & II;
iv) Physiotherapy Instructors
4. The appointment to these posts are made either by way of direct appointment or by promotion. Nursing Tutor Grade-II is promoted to Grade-I and the experience and qualification are prescribed under the rules. The criteria for promotion prescribed is merit and ability. Seniority is being considered only where merit and ability are approximately equal.
5. The petitioner was promoted to the post of Nursing Grade-II on 22.09.2006, as she was not considered for promotion for want of regularization order. The petitioner made representation to consider her for promotion in the year 2004-2005, as the petitioner was not only deprived of her seniority, as per G.O.No.248 dated 20.10.1997, but also in promotion panel, as juniors to the petitioner were promoted earlier and placed above in the seniority list.
6. The case of the petitioner further is that on release of panel for promotion to Grade-I of the year 2005-2006, she again made representation that her seniority in Nursing Tutor Grade-II be reckoned and refixed with effect from 2004-2005. When temporary panel of Grade-I promotion for the year 2005 2006 was forwarded for consideration of appointment, she made another representation on 21.08.2007.
7. The petitioner, thereafter, filed W.P.No.602 of 2008 to direct the respondents to consider her representation for refixation of her seniority in Grade-II from 2004 onwards, and consequently, for further promotion to higher category reckoning the said seniority list.
8. The case of the petitioner is that in the panel list of the year 2005 2006 dated 10.01.2007, she was placed in S.No.13 showing her CNL No.3260 with the remark as “New”. But she was not considered for promotion, though no disciplinary proceeding was pending against her during the said period. The petitioner was ignored for promotion.
9. The case of the petitioner further is that after ignoring her promotion in the year 2005 2006, though her name in the new panel for the post of Nursing Tutor Grade-I is shown at S.No.13, but no promotion was given to her, though the petitioner does not possess any disqualification for further promotion.
10. In view of the facts stated above, the petitioner prays for issuance of writ of certiorari to quash the impugned order dated 30.07.2009, declining her request for refixation of seniority. The impugned order reads as under:
"L.Dis.No.37961/N2/1/09 Office of the Director of Medical and Rural Health Services, Chennai-600 006. Dated: 30.07.2009 Sub : Nursing Establishment Tmt.R.Chandra, Nursing Tutor Grade-II, Annal Gandhi Memorial Hospital, Trichy Request for refixation of seniority Regarding. Ref : Individual's representation dated 05.06.2009 *****
Tmt.R.Chandra, Nursing Tutor Grade-II, Annal Gandhi Memorial Hospital, Trichy is informed that the request for refixation of seniority cannot be complied with since the seniority already fixed is correct one and it is fixed according to rules.
P.Nandagopalsamy
Director of Medical and Rural
Health Services”
11. The writ petition is contested by the respondents by filing counter, wherein, the stand taken by the respondents is that the petitioner joined the Government Service on 25.10.1976 as Staff Nurse. She was promoted as Nursing Tutor Grade-II on 18.10.2006, vide order Ref.No.14690/N2/1/2006. It has been mentioned in the counter that her CNL Number is 3260 in the cadre of Staff Nurse. A positive stand taken in the counter is that for promotion for the post of Nursing Tutor Grade-I, seniority assigned in the cadre of Nursing Grade-II, is to be taken into consideration. Her panel seniority in the list of Nursing Tutor Grade-II is 320, as per the seniority list dated 26.07.2010.
12. In the counter, stand taken by the respondents is that the petitioner was charge sheeted under Rule 17(b) of Tamil Nadu Civil Service (P&A) rules and she was awarded major punishment of stoppage of increment for four years with cumulative effect. Her period of punishment expired on 05.12.2005 and therefore, she became eligible for promotion to Nursing Tutor Grade-II after 6th December, 2005 and she was, accordingly, promoted on 18.10.2006. The stand taken in the counter is that merely inclusion of name in the panel for promotion, did not give her right to be promoted, as none of her juniors have so far been promoted as Nursing Tutor Grade-I. It has been made clear in the counter that even in the panel year 2010 2011, the petitioner’s name appears at seniority No.320, therefore, she cannot claim promotion merely on the basis of her CNL No.3260, as for promotion to Nursing Tutor Grade-I, seniority of Nursing Tutor Grade-II is seen and not CNL seniority.
13. Learned Government Advocate appearing on behalf of the respondents placed on record seniority of Nursing Tutor Grade-II as on 01.09.2008, wherein, name of the petitioner appears at seniority list 320. The request of the petitioner for change of seniority in Nursing Tutor Grade-II, stands declined by the order impugned.
14. Learned counsel for the petitioner challenged the impugned order by contending that for placing her at seniority No.320, there is no basis, as the persons from other institutions are included, and further that junior to the petitioner stood promoted. The contention of the learned counsel for the petitioner is that panels are drawn and prepared on CNL basis, which is the seniority to be taken into consideration for impanelment and promotion and no fresh seniority is assigned to Nursing Tutor Grade-II.
15. It is also the contention of the learned counsel for the petitioner that no seniority list at Nursing Tutor Grade-II was ever prepared. Learned counsel for the petitioner also contended that the petitioner became eligible for promotion for the panel year 2005, as the penalty period was over and there were no departmental proceedings pending on the said date.
16. Learned counsel for the petitioner, by referring to panel for Nursing Tutor Grade-I dated 10.01.2007, contended that name of the petitioner was shown at S.No.13 by taking her CNL No.3260, but she was wrongly ignored. Reference was made to the order to contend that for the purposes of promotion from Nursing Tutor Grade-II to Grade-I, it is the CNL number, which is to be taken into consideration and not the seniority list. Reference was also made to panel prepared for the post of Nursing Tutor Grade-I for the year 2007 2008 and 2008 2009, wherein, her name was shown as No.1, by taking her CNL number as 3260.
17. The contention of the learned counsel for the petitioner was that action of the respondents, in not promoting petitioner from due date is, thus, arbitrary. Whereas impugned order of refusal to change seniority, has been challenged on the ground that it is non speaking order, as no reasons have been given for not considering the petitioner for promotion, especially when CNL number is not disputed.
18. Learned counsel for the petitioner placed reliance on the judgment of the Hon’ble Supreme Court in the case of Balwant Singh vs. Dave, reported in 1981 (1) SLR 610 SC to contend that once the period of penalty was over, there remains no impediment for promotion.
19. Learned counsel for the petitioner, also, placed reliance on the judgment of the Hon’ble Supreme Court in the case of Shri Gurd V Singh Sidhu, Superintendent of Police vs. The State of Punjab and others, reported in 1969 SLR 695 to contend that it is the fundamental right of a public servant to seek higher promotion, if eligible, as denial of promotion would infringe under Article 16 of the Constitution.
20. The reliance was also placed on the judgment of the Hon’ble Supreme Court, in the cases of Rameshwar Prasad vs. State of Bihar and others (AIR 1980 SC 104) and Sheo Dayal Sinha and others vs. State of Bihar and others (AIR 1981 SC 1543), holding that yearwise panel when clubbed for several years would be bad and impermissible.
21. The Hon’ble Supreme Court, in this case, was pleased to hold that in case employees are not considered for promotion, direction can be issued to the Government to consider their claims.
22. Reliance was also placed on the judgment of the Hon’ble Supreme Court in the case of S.Krishnamurthy vs. The General Manager, Southern Railway, reported in AIR 1977 SC 1868 and Alappat Narayana Menon vs. State of Kerala, reported in 1977 (2) SLR 656, wherein, settled principle of law was reiterated that the High Courts, in exercise of power under Article 226 of the Constitution of India, can mould the relief on the facts and circumstances of the case.
23. On consideration, I find no force in the contention raised by the learned counsel for the petitioner. The contention of the learned counsel for the petitioner that panel promotion is made on the basis of CNL number and that no fresh seniority is assigned at Nursing Tutor Grade-II stage, is contrary to the pleadings in Paragraph No.8 of the affidavit itself, wherein, a specific stand has been taken that on account of non inclusion of her name for 2004 2005, she has been deprived of her seniority and promotion whereby, juniors to the petitioner have overtaken her and placed at higher seniority. In spite of specific stand in the affidavit, petitioner has not challenged the promotion of her alleged juniors.
24. It is also pleaded case of the petitioner herself that being aggrieved by the action of the respondents, in not including her name for promotion for the year 2004 2005, she had approached this Court by filing W.P.No.602 of 2008 for refixation of seniority. The impugned order, with regard to refixation of seniority has been passed in pursuance to the direction issued by this Court in W.P.No.602 of 2008.
25. The contention of the learned counsel for the petitioner that the petitioner is to be treated senior in view of her name appearing at S.No.13 in the panel, also cannot be accepted, as the petitioner herself rightly pleaded in the affidavit that promotion to Nursing Tutor Grade-I is from Grade-II. Once this fact is admitted, and even according to service rules, seniority in the cadre of Nursing Tutor Grade-II is to be taken into consideration for the promotion to Nursing Tutor Grade-I.
26. It is not the case of the petitioner that for promotion to Nursing Tutor Grade-I, seniority as staff nurse was to be reflected in Grade-II rather it is the case of the petitioner that she was entitled to promotion for the panel year 2004 2005, which cannot be accepted for the reason that punishment period of the petitioner was with effect from 01.10.2001 to 05.12.2005.
27. On expiry of this period, she was in fact promoted as Nursing Tutor Grade-II on 18.10.2006. Seniority in Nursing Tutor Grade-II, therefore was required to be counted only from the date of promotion and not prior thereof, as rule of seniority is continuous service on the post.
28. The petitioner cannot take any benefit of her name being included in the panel list at S.No.13, as the panel was prepared on CNL number, but, according to the service rule, for the purposes of promotion, seniority of the post, from which promotion is to be made, was to be taken.
29. The contention of the learned counsel for the petitioner that impugned order is non speaking order also deserves to be noticed to be rejected, as admittedly, seniority list has been prepared keeping in view of continuous length of service as Nursing Tutor Grade-II and the seniority assigned to her is from the date of her promotion as Nursing Tutor Grade-II. As already observed, the petitioner has not challenged the promotion of juniors. Reliance of the learned counsel for the petitioner on the judgment of the Hon’ble Supreme Court in the case of Balwant Singh vs. Dave (supra), is of no help, as the petitioner was granted promotion to the post of Nursing Tutor Grade-II after expiry of penalty period. Similarly, judgment of the Hon’ble Supreme Court in the case of Shri Gurd V Singh Sidhu, Superintendent of Police vs. The State of Punjab and others,(supra) is of no help, as no junior to the petitioner has been promoted and furthermore her name was also considered. She could not be promoted being junior in the cadre of Nursing Tutor Grade-II.
30. It is not the case of the petitioner that yearwise panel years have been clubbed rather panel has been prepared from time to time, therefore, reliance of the petitioner on the judgments of the Hon’ble Supreme Court in the cases of Rameshwar Prasad vs. State of Bihar and others and Sheo Dayal Sinha and others vs. State of Bihar and others (supra), is misconceived.
31. There can be no doubt that High Court, in the given circumstances, can mould the relief, but in view of reasons stated above, the impugned order, having been passed in consonance with law, deserves to be upheld. No case is made out to interfere with the impugned order or to issue a writ in the nature of Mandamus for considering the case of petitioner for promotion by ignoring senior to her in Nursing Tutor Grade-II. The contention of learned counsel for the petitioner that there is no seniority list of Nursing Tutor Grade-II, cannot be accepted as, in fact, seniority list is circulated, and was also placed on record. The petitioner, also being aggrieved by the seniority list, had made representation against the said seniority list. It is on the said representation that the impugned order was passed.
32. For the reasons stated above, the writ petition is ordered to be dismissed. No costs.
ar
To
1. The Director of Medical Education,
Poonamallee High Road, Kilpauk,
Chennai
2. The Director of Medical & Rural
Welfare Services,
DMS Campus, Teynampet,
Chennai 600 006