1. By way of this petition, the petitioner has approached this Court with a grievance that she is wrongly superseded in the matter of promotion on the post of Nursing Tutor. She compared her case with one Ms.J.M.Moris, respondent No.4 herein, who admittedly was junior to her as a Nurse. The petitioner had joined the service as Nurse in April, 1975 and her name was at Serial No.56 in the seniority list and that of Ms.Moris was at Serial No.338. Thus, there is no dispute with regard to the fact that the said Ms.Moris was junior to the petitioner in the cadre of Nurse.
2. The petitioner, while in service, was sent for training for ‘sister tutor’ by the authorities with condition that after getting the said training, she will have to work in that wing. She had undergone that training successfully. Thereafter she made representation to the authorities time and again, however, she was told that as and when the question of appointing Tutor would come, her case will be considered. On 21.7.2000, Respondent No.4 was appointed as a Tutor and the petitioner approached this Court by this petition.
3. Initially, this petition was disposed of by this Court vide order dated 18.9.2000 with direction to the authorities of the Government, Respondent No:1, to look into the grievance of the petitioner and pass appropriate reasoned order. Thereafter respondent No.3 passed an order on 12.12.2000 giving promotion to the petitioner on the post of Head Nurse but not on the post of Tutor. Respondent No.1, pursuant to the order of this Court dated 18.9.2000, gave written directions to respondent No.3 vide letter dated 8.1.2001, in effect, accepting the genuineness of the grievance of the petitioner. However, effectively no relief was granted to the petitioner by the authorities and therefore the petitioner filed Miscellaneous Civil Application No.125 of 2001 for revival of the petition, which was allowed vide order dated 15.02.2001.
4. Learned counsel for the petitioner contended that the petitioner ought to have been promoted on the post of Nursing Tutor soon after she acquired eligibility for the said post, but there was no reason not to promote the petitioner when person junior to the petitioner was promoted on the said post.
5. Learned Assistant Government Pleader Mr. Pandya contended that at the time of promotion of respondent No.4 on the post of Tutor, the petitioner was not in the cadre of Clinical Instructor and therefore she was not promoted. It is indicated that respondent No.4 was promoted as Clinical Instructor on 12.5.95. Thus, the non promotion of the petitioner on the post of Tutor is sought to be defended by the authorities saying that the petitioner was not promoted as Clinical Instructor. When asked, as to why the petitioner was not promoted as Clinical Instructor, the authorities are not in a position to reply, except the lame excuse of referring to some draft of rules which was sent by respondent No.3 to respondent No.1 which not only had not seen the light of the day in the form of actual issuance of rules, but which, even in principle is not approved by respondent No.1, as is clear from the letter dated 8.1.2001, based on which this petition came to be revived. When this petition came to be revived on 15.2.2001, the petitioner had hardly one fortnight in service, since she was to retire on 28.2.2001. The petitioner was promoted as Clinical Instructor vide order dated 17.2.2001. Thus, it is not that the petitioner was not entitled to promotion on the post of Clinical Instructor. The very action of the authorities of giving promotion to the petitioner, couple of days before her superannuation retirement, vide order dated 17.2.2001, makes the action of the authorities of not giving promotion to the petitioner on the said post in the year 1995 when respondent No.4 was promoted, arbitrary. Thus, reverting back to the main grievance as to why petitioner was superseded by respondent No.4 in the matter of promotion on the post of Tutor, the authorities are not in position to legally defend it. This court vide order dated 18.09.2000, had directed respondent No.1 to look into the matter. The respondent No.1 looked into the matter and as reflected in the letter dated 8.1.2001, in effect, accepted the grievance of the petitioner to be true. Respondent No.1 instructed respondent No.3 to undo that injustice. That redressal process started also, and as the first step in that direction, order dated 17.02.2001 was passed by which, the petitioner was promoted as Clinical Instructor. Before next step could be taken, the petitioner attained the age of superannuation on 28.2.2001 and thereafter redressal process stopped. By the interim order of this Court dated 24.04.2001, it was observed that the petitioner shall be given retiral benefits on the basis that she retired as Clinical Instructor and that she was appointed on the said post in February, 2001. It was further observed that the acceptance of such benefits by the petitioner would be without prejudice to her rights and contentions. Thus, at present, the petitioner is getting her retiral dues as having retired from the post of Clinical Instructor. The authorities have not been able to point out as on what basis Ms.Moris was promoted on the said post and on what basis the petitioner was denied the same.
Defence of referring to draft rules is not available to respondent No.3 on the face of disagreement of his higher authority on that aspect as reflected in the letter dated 8.01.2001 which is on record. Under these circumstances, this Court finds that there is no legally acceptable ground available to the respondent authorities to justify the supersession of the petitioner in the matter of promotion on the post of Nursing Tutor visavis respondent No.4.
6. Having found that action of the authorities of superseding the petitioner is bad in the eyes of law, the next question that crops up is, as to what relief can be granted to the petitioner. The petitioner did not challenge her supersession on the post of promotion as Clinical Instructor. However, the petitioner had approached this Court soon after respondent No.4 was promoted as Nursing Tutor. This Court vide order dated 18.09.2000 directed respondent No.1 to examine the grievance of the petitioner. By the letter written by respondent No.1 to respondent No.3 dated 08.01.2001 the said grievance is found to be genuine. Under these circumstances, the petitioner is entitled to promotion as tutor with deemed date of 21.07.2000, the date on which respondent No.4 was so promoted. So far as consequential arrears flowing from said deemed promotion is concerned, considering the fact that petitioner has retired on 28.2.2001, according to this Court, ends of justice would meet if the pay of the petitioner as Nursing Tutor from 21.7.2000 to 28.1.2001 is treated to be notional but her retirement dues are calculated on that basis and the difference in her retiral dues is paid to the petitioner.
7. For the reasons recorded above, I arrive at the judgment and pass order as under:
(i) The action of the respondent authorities of superseding the petitioner, in the matter of appointment on the post of Nursing Tutor on 21.07.2000, when respondent No.4 was so promoted, is held to be illegal, arbitrary and discriminatory and the respondent authorities are directed that petitioner shall be deemed to have been promoted on 21.07.2000 as Nursing Tutor.
(ii) So far consequential benefits are concerned, the petitioner shall not be entitled to arrears of pay for the period while she was in service, however, the petitioner shall be entitled to difference in her retiral dues. The said difference shall be paid to the petitioner within a period of three months from today.
8. Rule is made absolute to the above extent. No order as to costs.
amit Sd/ (PARESH UPADHYAY, J.)