Miss. Joshana Jonthan and Others vs The State of Rajasthan and Others

V.K. Singhal, J.—All these writ petitions are disposed of by this common order since the controversy involved in all of them is common.

For the sake of deciding all these writ petitions. The facts stated in the case of Miss. Joshana. S.B. Civil Writ Petition No. 1529/95 are taken into consideration.

In this matter a writ petition was filed by the Rajasthan Rajya Female Nursing Association, Jaipur and others, being D.B. Civil Writ Petition No. 1623/82 wherein the validity of the Rajasthan Medical and Health Subordinate Service Amendment Rules, 1982 was challenged. This writ petition was disposed of on 2.12.1994 In which the Division Bench of this court observed that the writ petition was filed way back in the year 1982 When the Rajasthan Medical and Health Subordinate Service Rules, 1965 was in force. Thereafter, various amendments have been made in these rules and, therefore, the entire edifice of the matter has been changed. If the petitioner association is entitled to any relief under the provisions of the aforesaid rules as amended upto date then they will be at liberty to file a fresh wilt petition.

According to this decision of the Division Bench, the association or any member thereof could have challenged the action of the respondents in not giving the relief according to the amended provisions of the rules. The validity of the rules which was challenged by the association has not been declared ultravires nor it can be permitted to be challenged at this stage.

In the un-amended rules, the posts of Midwives and Auxilary Nursing Midwives (ANM) under the department of Medical and Health was given to the petitioner. It is stated that the petitioner has undergone two years theoretical and practical training in Nursing of Men and Women and Children and Midwifery and Obstertoca Nursing Course. The post of ANM was to be filled up 100% by direct recruitment and such ANMs were entitled to promotion on the post of Staff Nurse Grade II to the extent of 25% of the seats. The next promotion was in the rank of Nursing Superintendent Grade I. By the amendment of 1982 in Schedule of the Rules of 1965, the cadre is re-constituted as under:

s. Name of Source of Recr- Minimum Qualif- Posts From Minium Remarks No. post uitment with ication and which qualification percentage Experience for Promotion and experience Direct Recrui- is to be required for tment made promotion Direct Promotion Recruitment (i) (ii) 1 2 3 4 5 6 7 GROUP A I (HEALTH SIDE) (Combined Male and Female Cadres) 1. Distr- 50% 50% 1. B.Sc. Nursing Health Five years'' - ict Pu- from a recognised Supervisor service as blic He- Institution with (Block) a Health alth one year service (Female) Supervisor Nurse as Health (Block) Supervisor (Block) (Female) (Female) 2. Health Supervisor (Block) with Diploma in Public Health Nurse from a recognised Institution and 3 years'' Service thereafter. 2. Health - 100% - Health 5 years'' - Supervisor Supervisor experience (Block) (Sector) as Health (Female) (Female) Supervisor (Sector) (Female) 3. Health - 100% - Health. 7 years'' - Supervisor Worker service as (Sector) (Female) Health Worker (Female) (Female) with 6 months Training in Health Supervisor Course recognised by the Government 4. (a) Health 100% - VIII Standard with - Note (i) The Worker Auxiliary Nurse designation of (Femalej Midwifery ANM has been Training/Health Worker changed as Female Course passed Health Worker (Female) (ii) 25% Posts of Health Workers (Female) shall be filed by Nurse Deitill all Nurse Dai till all Nurse Dai with VIH standard are absorbed thereafter 100% by direct recruitment (b) Nurse - 100% VIII Standard Dai 7 years service This is also Dai with Nurse as dai with VIII dying Cadre. Course Passed standard passed Only promotion from Dai to be given till both the cadre. (c) Dai - - To be treated as a dying cadre and no fresh recruitment should be made on this post. 6. The grievance of the petitioner is with regard to change of designation of ANM as Health Worker Female and not giving the promotional avenues to the post of Staff Nurse. It is also stated that the action of the respondents had been arbitrary and discriminatory in as much as the seniority, length of service etc. have not been taken into consideration while giving the training.

The change from Medical side to Health side has also been challenged more particularly with reference to the condition of six months training for the next promotion.

I have considered over the matter. So far as the requirement of six months training is concerned, the petitioners cannot be aggrieved by such an action because the training is being given by the respondents and it is at their cost and the petitioners are entitled for the salary during the training period. It is however observed that this training has to be given in accordance with the seniority of ANM and even if there is any deviation or the respondents have departed in no following that principle, the same would be brought in consonance with the directions given above. These ANMs shall now be given the training and would be sent for such training on the basis of their seniority.

The plea that the change in designation has effected their right cannot be considered to be proper because if the designation is changed and if certain more workers are to be taken and for that purpose training is given the petitioners are not to loose anything. After obtaining six months training the cases of the petitioners have to be considered for promotion to Health Supervisor (Sector)(Female). The next promotion is Health Supervisor (Block)(Female) and then to the District Public Health Nurse. The post of Health Supervisor (Sector)(Female) and Health Supervisor(Block)Female) is to be filled up 100% by promotion and as such the contention of the learned counsel for the petitioner that promotional avenues have been blocked is not factually correct. Though the grade of Health Supervisor (Block) (female) is equivalent to Staff Nurse and one more post has been inserted in between Health Worker (Female) and Health Supervisor (Block)(Female) in Health Supervisor (Sector)(Female), but for that reason it cannot be said that there are no promotional avenues. Looking to the vacancies available for the post of Health Supervisor (Sector) (Female) the respondents shall consider the promotion of all the petitioners after six months training is obtained as provided under the rules.

A grievance has also been raised that earlier rules provide the promotional avenues within a period of seven years on the post of Staff Nurse while the amended rules provided the Promotional avenues from Health Worker to Health Supervisor (Sector) (Female) (after seven years and a further time of five years experience as Health Supervisor (Sector) (Female) is required for promotion to the post of Health Supervisor (Block) (Female). As state above the validity of the rules was challenged by the association and this court has not struck down the rules as violative of the provisions of the Constitution. The individual member thereafter cannot be permitted to raise the same dispute and in any case the position of law is that at the time when the promotion is to be made the rules in existence have to be seen. The contention of the learned counsel for the petitioner that a right is accrued for promotion under old rules has no substance. Even if a promotional ''avenue is provided, it could have been given rise to the consideration of a candidate and if there was no consideration then at such a late stage directions could not be given to promote on a post which is not in existence. It is also stated that certain ANMs have been promoted or are working on the post of Staff Nurse, either by virtue of interim orders of this court or because of the discretion which the respondents Have exercised in favour of a particular candidate. So far as this position is concerned. It is made clear that the respondents are bound to follow the rules strictly and to give promotions or to allow any person on a higher post only in accordance with seniority. If the candidate is not available then by way of stop gap. arrangement, the respondents could allow the person to work on officiating/temporary post, but that too should be on the basis of seniority alone. Such officiation on the post of Staff Nurse cannot confer any right in view of the decision of the Apex Court in the case of State of Haryana Vs. S.M. Sharma and others, If any action has been taken by the respondents which is not on the basis of seniority, they have to set it right so that no grievance could be of any person that one is favoured and other is disfavoured.

If there is no consideration of the candidate within a period of seven years from the post of ANM to Staff Nurse that by itself does not confer any right of promotion. Learned counsel for the petitioner has pointed out that there are certain ANMs who have been promoted on the post of Staff Nurse who are junior to the petitioner. As state above the respondents cannot act in a manner by which the senior person for no reason may be discarded and this exercise has to be done by them on their level so that because of the amendment in the Rules of 1965 in 1982 all these ANMs Would be required to undergo six months training and then the promotion will be given in accordance with seniority alone on the post of Health Supervisor (Sector) (Female) .It is however made clear that after the training the petitioners would not be required to serve for a further period of seven years on the post of Health Worker (Female) Since they have worked as ANM for more than seven years and it was by change of designation that the post of ANM were changed to Health Worker (Female).

All the writ petitions are disposed of in accordance with the directions given above.