ANJANA MATHUR Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) 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.) 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. 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.