Smt. K.G. Nair and Others vs State of M.P. and Others

Sujoy Paul, J.—The petitioners have filed this petition praying for correction of the seniority list Annexure-P/2. It is prayed that they be granted seniority from the date of initial appointment and thereafter they be considered for promotion on the post of Nursing Sister from the date, private respondents were given the said promotion. Petitioners were initially appointed as Lady Health Visitor (General Nursing, G.N. Trained) (hereinafter called as "LHV (GN). The respondents prepared a seniority list showing the position of Nursing cadre as on 01/04/1989. This seniority list was issued on 20/01/1989. The names of the petitioners are at no. 194, 204, 218 whereas the names of respondents are at no. 199 and 234 respectively. The name of respondent No. 4 is above all petitioners except petitioner No. 11 in this seniority list. The case of the petitioners is that this seniority list is rightly prepared on the basis of the date of initial appointment as LHV (GN). The respondents prepared, thereafter yet another seniority list Annexure-P/2 showing the position of Staff Nurse cadre as on 01/04/2003 Annexure-P/2. Petitioners have preferred separate representations against this seniority list. In this seniority list, private respondents have secured march over and above the petitioners.

The bone of contention of the petitioners is based on the statutory recruitment rules, which are called as Public Health & Family Welfare Service Recruitment Rules, 1989 (RRs). By relying on schedule I appended to the RRs, it is contended that column No. 3 contains various posts from Staff Nurse to LHV (GN). These posts are described from 3 (A) to (G). The column No. 5 shows that all these posts mentioned in 3 (A) to (G) carries the pay-scale of Class-III posts the pay-scale which is Rs. 1200-1840. The post of LHV simplicitor carries an inferior scale of Rs. 975 - 1650. On the basis of seniority list Annexure-P/2, promotion order dated 07/02/2003 Annexure-P/1 was issued, whereby the private respondents herein were promoted on the post of Nursing Sister. It is contended that as per Schedule IV of RRs, in the Nursing Service, the post of Nursing Sister can be filled up by way of promotion from the feeder posts of Staff Nurse/Warden/Public Health Nurse/Operation Theatre Nurse/Nursing Supervisor/Nursing Orderly/Lady Health Visitor (GN) appointed before 01/04/1981 in the scheme. The case of the petitioners is that they are in the cadre of Nursing Sister and from the date of their initial appointment, they are senior to the private respondents. There is no justification in placing the private respondents in the seniority over and above the petitioners and then, promoting them by impugned order Annexure-P/1.

The return of the official respondents is not there in the file. However, learned Deputy Government Advocate submits that reply was filed way back on 21/06/2004. Interestingly, copy of this reply is available with the petitioners and the private respondents herein. Therefore, learned Dy. Government Advocate is directed to provide photocopy of this return and office is directed to keep it in the present file. In Para 5.4 of the return so supplied, it is stated that the seniority list of Staff Nurse has to be prepared on the basis of date of appointments as Staff Nurse. The gradation list has been prepared according to the appointment on the post of Staff Nurse in the year 2002 and DPC has considered the gradation list of 2002. However, it could not be demonstrated as to how this criteria for determining the seniority is invoked. The private respondents have not chosen to file any reply and it is reported that in the meantime, they have retired from service on attaining the age of superannuation.

The aforesaid return of the State, does not make it clear as to how criteria/formula for reckoning the seniority was drawn. Both the seniority lists filed by the petitioners include the category of LHV (GH). Petitioners were carrying the pay-scale of Rs. 1200 - 1840. In that situation, the only course available with this Court is to direct the respondents to examine the RRs and determine the proper formula for reckoning seniority on the basis of recruitment rules and other relevant rules for the purpose of redetermining seniority. The seniority is to be redetermined as on 01/04/2003, the date for which Annexure-P/2 was issued. On application of proper criteria for determining seniority as on 01/04/2003 if petitioners secure march above the private respondents, the respondents shall convene review DPC to consider the case of the petitioners from the date private respondents were promoted as Nursing Sister on notional basis and if petitioners are promoted, the said notional benefits shall continue till their retirement. Petitioners, who were retired shall get actual benefits on retrial dues. Petitioner No. 3, who is still in employment shall also get the benefit of notional fixation, if she was found fit and promoted from the date of promotion of juniors. She will get actual benefits from the date of orders of promotion. The respondents shall undertake the aforesaid exercise immediately and shall complete it within 08 months from the date of production of certified copy of this order. It is made clear that this Court has not expressed any opinion on the entitlement of the petitioners. Petition is disposed of accordingly.