Calcutta High Court (Appellete Side)
(Rekha Ghosh & Ors vs The State Of West Bengal on 19 November, 2018
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19.11.2018 W.P.S.T. 9 of 2018
(Rekha Ghosh & Ors. vs. The State of West Bengal
& Ors.)
Mr. Syed Mansur Ali
Ms. Tanuja Basak...............for the petitioners
Ms. Chaitali Bhattacharya
Mr. Benazir Ahmed..............for the respondents
1. This writ petition is directed against the judgment
and order dated September 07, 2017 passed by the West
Bengal Administrative Tribunal (hereafter the 'tribunal')
while disposing of an original application (O.A. 180 of
2015) and a connected application (M.A. 199 of 2016). It
is at the instance of seven employees of the State
Government who are aggrieved because the tribunal did
not grant them complete relief as claimed in their original
application. We are called upon to examine whether the
tribunal was right in declining the main relief that was
claimed by the petitioners, i.e. promotion as tutors.
2. The petitioners before us are Grade-II nurses. All of
them have the degree of B.Sc. (Nursing). Pursuant to
requests made by the petitioners, the Director,
Employees State Insurance (M.B.) Scheme, Government
of West Bengal vide memo dated November 29, 2010,
after noting their respective positions in the gradation list
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(mentioned in column 3) deputed them to the ESI
institutions (mentioned in column 5) for utilization of
their services thereat with immediate effect as faculty
members. It was the claim of the petitioners that at the
ESI Hospitals, where they had been deputed, they were
discharging the duty of tutors but were being paid the
salary that a Grade-II nurse receives. Since the
petitioners had been discharging duties as tutors for
sufficiently long period of time, they had approached the
Government with a request to promote them and
correspondingly designate them as tutors. The request of
the petitioners not having been accepted, they
approached the tribunal with the original application
seeking the following relief:
"7. Relief sought for: (a) Leave may be granted
to fle and move the instant application jointly as
because the cause of action and the prayers of the
applicants are similar and identical;
(b) A direction upon the
Respondent Authorities to forthwith promote the
applicants as Senior Tutor Grade I(I) or Sister Tutor in
the scale of pay of Rs. 9,000-40,500/- with Grade
Pay of Rs. 4,500/- as per the Recruitment Rules from
the date of completion of service as a Teacher in the
Training Institute and pay the applicants all arrears
of salaries and allowances;
(c) Issuance of any other
order or orders and/or direction as this Hon'ble
Tribunal may deem fit and proper."
3. During the pendency of the original application, an
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advertisement was issued for filling up vacant posts of
tutors by direct recruitment. This prompted the
petitioners to file an interim application. The relief
claimed therein was that the respondents may be
restrained by the tribunal from filling up all the vacant
posts by direct recruitment.
4. The original application was contested by the
respondents by filing a counter affidavit. Paragraph 6(iii)
of such affidavit being relevant, is quoted below:
"(iii) With reference to the averments made in
Paragraph 6.2 to 6.4 of the said Original Application, I
deny and dispute everything contained therein save
and except what are matters of record. I further state
that there is no such post of Staff Nurse Grade I (II)
under the ESI (MB) Scheme, West Bengal and as such
there is also no provision for being eligible after
completion of three years of service. As per existing
recruitment rules Vide Memo No. 885-SS dated
11.09.2014, the Grade II Nurse (Staff Nurse) who
completed at least five years of satisfactory service
are promoted to the post of Grade I (ii) Nurse
(designated as Sister-in-Charge) as per available
vacancies in the higher post, on seniority basis. In the
seniority list the present applicants are placed
between serial no. 138 to 454. I further state that the
service of the applicant were utilized without
changing their present status of Grade-II Nurse as an
interim measure and also on the basis of their
representation. I further state that there is no
provisions in the existing recruitment rules for
Training Institute published vide Memo No. 169-SS
dated 11.02.1999 for getting promotion to the post of
Tutor from Grade-II Nurse (Staff Nurse). I further state
that, as per recruitment rule dated 11.02.1999 there
are two methods to fill up the post of Tutor which are
as follows:-
a) Firstly, by selection (Direct Recruitment)
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through the Public Service Commission, West Bengal.
b) Secondly, by promotion, in consultation with
the Public Service Commission, WB, from the post of
Grade I (ii) Nurses (Designated as Sister-in-Charge,
working either at Nursing Training Centre or at
Hospital ward and having put in three years' service
in the post and fulfilling the essential qualification for
direct recruitment.
All the present applicants are Grade-II Nurse
(designated as Staff Nurse) as such there is no
provisions as mentioned herein above to promote
anyone who is a Grade-II Nurse (designated as Staff
Nurse) to the post of Tutor as per existing recruitment
rule. It is also pertinent to mention herein that at
present none of the applicants services are utilized as
Faculty Members in the training institute and their
services are now being utilized as Staff Nurse."
5. Contents of paragraph 6(iii) (supra) were dealt with
by the petitioners in their reply affidavit as follows:
"6. The statements made in sub-paragraph (iii)
of paragraph no. 6 of the said reply are denied and
disputed. The applicants repeat and reiterate the
statements made in paragraph nos. 6(ii) to 6(iv) of the
Original Application. The applicants state that
according to the recruitment rules framed by proviso
to Article 309 of Constitution of India the post of Tutor
could be filled up by promotion of Nurses who have
completed at least 3 years of satisfactory service in
Nurses Training Centre the respondents are bound to
consider the case of the applicants for promotion as
Tutor and to pay the applicants salaries and
allowances of Tutor.
The applicants state that once the order of
posting was issued in public interest the answering
respondents cannot say that the applicants were
posted as per their prayer. The applicants state that
the provisions of the recruitment rule quoted in this
paragraph relates to 11.2.1999 but the notification
issued on 11.2.2014 clearly speaks that in exercise of
the power conferred by proviso to Article 309 of the
Constitution of India and in supersession of earlier
rule on the subject the Governor is pleased to make
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rule regulating recruitment to the Nursing personnel in
the cadre of West Bengal Employees State Insurance
Nursing Service. The rule which was superseded by
the Governor cannot be relied upon."
6. Examination of the claims of the petitioners for
appointment on promotion as tutors, as opposed by the
respondents in their counter affidavit and the version of
the petitioners in their reply affidavit, as noticed above,
would obviously require us to take a look at the relevant
recruitment rules.
7. The rules for recruitment as 'tutor' are contained in
rules framed under the proviso to Article 309 of the
Constitution of India sometime in 1999 and titled
Recruitment Rules for the Posts of Principal, Tutor and
Clinical Instructor in the Nurses' Training Centre,
Calcutta under ESI (MB) Scheme, West Bengal (hereafter
the recruitment rules). For facility of reference, we quote
the relevant part of the recruitment rules below :
"2.(i) NAME OF THE POST : (i) Tutor (ii)
Clinical Instructor.
(ii) METHOD OF RECRUITMENT : (a) By
selection (direct recruitment) through Public Service
Commission, West Bengal
(b) By promotion in consultation with the
Public Service Commission, West Bengal from the post
of (i) Sister-in-Charge [Grade-I (ii)] and Nurse, working
either at Nurses' training centre or in the ward, having
put in three years' service in the post and fulfilling the
essential qualification prescribed for direct recruitment.
(c) by inter-transfer.
******
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(iv) Age: Not more than 32 years on the 1st January of the year of the advertisement, relaxable for persons already in Govt. Service "
At this juncture, we also consider it proper to note the recruitment rules for appointment as Grade- I (ii) nurse. The same is contained in another set of rules framed in exercise of power conferred by the proviso to Article 309 of the Constitution of India and is titled West Bengal Employees State Insurance Nursing Service (Recruitment) Rules, 2014 (hereafter the 2014 Rules). The provisions contained in the 2014 Rules for recruitment and appointment on the post of Grade-I (ii) Nurse read as follows:
"4. Name of the Post : Grade I (ii) Nurse: Method of Recruitment:
(A) By promotion of Nurses who have completed at least 5 (five) years of satisfactory service in ESI Nursing Service as Grade II Nurse, failing which-
(B) By Transfer from West Bengal Nursing Service Grade-I (ii) under Department of Health & Family Welfare, Govt. of West Bengal, failing which-
(C) By Selection (direct recruitment) through open advertisement by the Director, ESI (MB) Scheme, West Bengal
(a) Qualification for direct recruitment: Seven years' experience as Staff Nurses (Grade II) in any Govt. Institutions OR B.Sc. degree in Nursing of any recognized University.
(b) Age for direct recruitment : Not more than 32 years on the 1st day of January of the year of advertisement;
Provided that the upper age may be relaxable for the candidates belonging to the categories of 7 Scheduled Castes, Scheduled Tribes and other Backward Classes as per Govt. orders/rules for the time being in force;
The 2014 Rules also contain provisions regulating recruitment to the post of Grade-I (i) Nurse (designated as Matron). To the extent relevant, the same reads as follows:
6. Name of the Post : Grade-I (i) Nurse (designated as Matron):
Method of Recruitment:
(A) By promotion: In consultation with the Public Service Commission, West Bengal, from the existing Nursing Staff who have completed at least 5 (five) years' of service in Grade-I (ii) under the West Bengal Employees State Insurance Nursing Service, failing which-
(B) By selection (direct recruitment) through the Public Service Commission, West Bengal.
(a) Qualification for direct recruitment: Seven years' experience as Sister-in-Charge [Grade I
(ii)] in any Govt. Institutions OR B.Sc. degree in Nursing from any recognized University.
(b) Age for direct recruitment: Not more than 32 years on the 1st January of the year of advertisement Provided that the upper age may be relaxable for the candidates belonging to the categories of Scheduled Castes, Scheduled Tribes and other Backward Classes as per Govt.
rules/orders for the time being in force'"
8. Although the petitioners have averred in their reply affidavit that the 2014 Rules had the effect of superseding all earlier rules and that the respondents cannot rely upon the recruitment rules relating to recruitment as 8 'tutor', we are not impressed for the simple reason that the 2014 Rules do not contain any provision regulating appointment on the post of 'tutor' either by direct recruitment, promotion or transfer. In view thereof, it is the recruitment rules relating to recruitment as 'tutor' that would have a bearing on the controversy.
9. It is clear from rule 2 of the recruitment rules for recruitment as 'tutor' that apart from direct recruitment and transfer, such post may be filled up by promotion from amongst those who are designated as Sister-in- Charge. The words "[Grade-I (ii)]" appearing immediately after the words "Sister-in-Charge", which are followed by the words "and Nurse" do, however, provide sufficient ground for confusion and Mr. Ali, learned advocate for the petitioners did not leave any stone unturned to derive advantage therefrom. Notwithstanding that the petitioners contended before the tribunal that the recruitment rules for recruitment as 'tutor' did not survive upon the introduction of the 2014 Rules (a contention which we have rejected in the preceding paragraph), Mr. Ali was heard to urge that the word "Nurse" in rule 2(ii)(b) not having been qualified by reference to a nurse in any particular Grade, even nurses in Grade-II are entitled in 9 terms of such rules to claim consideration of their candidature for promotion as 'tutor'.
10. We are, therefore, required to interpret rule 2(ii)(b).
11. The recruitment rules for recruitment as 'tutor' were framed as far back as in February, 1999. Nearly 15 (fifteen) years later, the 2014 Rules were framed. Rule 6(i) of the 2014 Rules clarifies that Grade-I (i) nurses have since been designated as Matrons. We do not find reference to "Sister-in-Charge" in the 2014 Rules but paragraph 6(iii) of the counter affidavit of the respondents filed before the tribunal does suggest that a nurse in Grade-I (i) "working either at Nursing Training Centre or at Hospital ward and having put in three years' service in the post and fulfilling the essential qualification for direct recruitment" could be designated as Sister-in-Charge.
12. What is noteworthy at this stage is one particular stand of the respondents before the tribunal. The respondents admitted that the word 'and' in rule 2(ii)(b) was creating confusion and that the Government was contemplating bringing about an amendment which, we are informed, is yet to see the light of the day. Even without such amendment having been effected in rule 2(ii)(b), we are of the view that the words "and Nurse" 10
cannot be read and understood out of the context to imply that a nurse, irrespective of the grade in which she belongs, would be entitled to claim consideration for promotion to the post of 'tutor' which has in the main "Sister-in-Charge" in Grade-I (i), as well as a nurse in Grade-I (ii) as the feeder posts.
13. A careful reading of the versions of the respective parties on affidavits as well as the rules regulating recruitment, extracted above, lead us to the unmistakable conclusion that Grade-II nurses constitute the feeder posts for promotion as Grade-I (ii) nurses, and in order to be qualified for promotion to the post of 'tutor', Grade-I Nurse is the feeder post and the requisite period of service to be put in by nurses in Grade-I (i) for being eligible for promotion to the post of tutor is 3 (three) years.
14. Since any other interpretation would lead to incongruous results, we have to iron out the creases that do appear on a plain reading of rule 2(ii)(b).
15. It is the admitted position that the petitioners have not been promoted as nurses in Grade-I (ii), not to speak of promotion to Grade-I (i). On the contrary, as far back as in 2015, the petitioners have been divested of the responsibility to discharge the duty and perform the 11 functions of tutors and are presently posted at various State run hospitals for discharging hospital duties.
16. Having regard to the provisions of the recruitment rules, which ordain that the post of 'tutor' may be filled up by promotional appointment from amongst those who have been designated as Sister-in-Charge, as well as Grade-I (ii) nurses, we do not consider it appropriate to accept the contention advanced by Mr. Ali that the petitioners are qualified for promotion as tutors because of insertion of the words "and Nurse" in rule 2(ii)(b) of the recruitment rules. If indeed the contention of Mr. Ali were accepted, any nurse (without reference to the grade to which she belongs) would be eligible to claim promotion to the post of 'tutor', if indeed she meets the other qualifications for such appointment.
17. To our mind, the recruitment rules having specifically identified the feeder posts, viz., Sister-in- Charge [which we are inclined to hold on the basis of our interpretation of the 2014 Rules to mean a nurse in Grade-I (i)] and nurses in Grade-I (ii), which the petitioners are not, there can be no doubt that the tribunal was right in arriving at a conclusion that the petitioners were not eligible to claim promotion as tutors. 12
18. In view of our above analysis of the facts and the relevant law, we share the view expressed by the tribunal that the petitioners did not have the requisite qualification for appointment on promotion as tutors and, therefore, the Government did not act illegally or in an arbitrary manner in not designating them as such.
19. There is one other aspect of which we cannot be unmindful. The petitioners on their own volition offered to serve as tutors in the ESI institutions as it appears from the memo dated November 29, 2010. Having volunteered to serve as tutors, obviously because they had the necessary educational qualifications, but without the financial entitlements attached to the posts of 'tutor' and without raising any demur, we are also of the view that the petitioners are estopped from contending that they are entitled to be promoted overriding the seniority position of other Grade-II Nurses. Since the petitioners' services were utilized as tutors without there being an open advertisement inviting other academically eligible candidates to apply and without any promise extended to them of being promoted and appointed/designated as tutors, grant of the prayer made by the petitioners would result in subjecting other nurses senior to the petitioners 13 to injustice. We cannot, in the exercise of equitable jurisdiction, bring about a result that would be detrimental to the other nurses senior to the petitioners.
20. However, the tribunal found that the petitioners had been discharging the duties of tutors and relying on the decision of the Supreme Court reported in A.I.R. 2016 SC 5176 : State of Punjab & Ors. vs. Jagjit Singh & Ors., granted partial relief to the petitioners by holding that they shall be entitled to parity in pay not from the date when their services were utilized as faculty members of the ESI Hospitals but upon completion of 2 (two) years from the respective dates of joining as faculty members.
21. We have ascertained from Ms. Bhattacharya, learned senior Government advocate representing the respondents that the respondents in the original application have not challenged that part of the judgment of the tribunal granting partial relief to the petitioners.
22. We, therefore, find no reason to interfere. The writ petition stands dismissed. There shall be no order as to costs.
23. We record Ms. Bhattacharya's submission that as and when advertisement is issued for direct recruitment for appointment as 'tutor', the petitioners would be at 14 liberty to apply and if they apply, their claims shall be considered in relaxation of the criterion regarding age since they are already in Government service but subject to their fulfilling other eligibility conditions.
Urgent photostat certified copy of this order, if applied for, be furnished to the parties expeditiously. (BIBEK CHAUDHURI, J.) (DIPANKAR DATTA, J.)