Page No.# 1/24

GAHC010080722021

2025:GAU-AS:3065

THE GAUHATI HIGH COURT

(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : WP(C)/2940/2021

GUNAKANTI GOHAIN AND 20 ORS.

W/O DR. AMULYA KUMAR HAZARIKA, R/O ANANDANAGAR, BYE LANE

NO. 3, PRAGJYOTISH APARTMENT, DIST. KAMRUP (M), PIN 781032

VERSUS

THE STATE OF ASSAM AND 23 ORS.

REPRESENTED BY THE PRINCIPAL SECY. TO THE GOVT. OF ASSAM,

HEALTH AND FAMILY WELFARE (A) DEPTT., DISPUR, GUWAHATI 781006

2:THE COMMISSIONER AND SECY. TO THE GOVT. OF ASSAM

HEALTH AND FAMILY WELFARE (A) DEPTT.

DISPUR

GHY- 6.

3:THE SECY. TO THE GOVT. OF ASSAM

HEALTH AND FAMILY WELFARE (A) DEPTT.

DISPUR

GUWAHATI- 6.

4:THE DIRECTOR OF HEALTH SERVICES

GOVT. OF ASSAM

HENGRABARI

GHY- 36

ASSAM.

5:ADDITIONAL DIRECTOR OF HEALTH SERVICES (ADMN)

ASSAM

HENGRABARI

GHY- 36.

6:THE JOINT DIRECTOR OF HEALTH SERVICES (NURSING) Page No.# 1/24

GAHC010080722021

2025:GAU-AS:3065

THE GAUHATI HIGH COURT

(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : WP(C)/2940/2021

GUNAKANTI GOHAIN AND 20 ORS.

W/O DR. AMULYA KUMAR HAZARIKA, R/O ANANDANAGAR, BYE LANE

NO. 3, PRAGJYOTISH APARTMENT, DIST. KAMRUP (M), PIN 781032

VERSUS

THE STATE OF ASSAM AND 23 ORS.

REPRESENTED BY THE PRINCIPAL SECY. TO THE GOVT. OF ASSAM,

HEALTH AND FAMILY WELFARE (A) DEPTT., DISPUR, GUWAHATI 781006

2:THE COMMISSIONER AND SECY. TO THE GOVT. OF ASSAM

HEALTH AND FAMILY WELFARE (A) DEPTT.

DISPUR

GHY- 6.

3:THE SECY. TO THE GOVT. OF ASSAM

HEALTH AND FAMILY WELFARE (A) DEPTT.

DISPUR

GUWAHATI- 6.

4:THE DIRECTOR OF HEALTH SERVICES

GOVT. OF ASSAM

HENGRABARI

GHY- 36

ASSAM.

5:ADDITIONAL DIRECTOR OF HEALTH SERVICES (ADMN)

ASSAM

HENGRABARI

GHY- 36.

6:THE JOINT DIRECTOR OF HEALTH SERVICES (NURSING)

Page No.# 2/24

HENGRABARI

GUWAHATI

ASSAM

PIN- 781036.

7:ALL ASSAM GRADUATE NURSES ASSOCIATION

HAVING ITS REGD. OFFICE AT RUKMINIGAON

NABARATNA PATH

REP. BY ITS GENERAL SECY.

SMT. JUNU SARMA.

8:SMT. JUNU SARMA

W/O- SRI NIRANJAN SARMA

R/O- RUKMINIGAON

NABARATNA PATH

HOUSE NO. 4

P.O.- KHANAPARA

GUWAHATI- 781022

DIST.- KAMRUP (M)

GENERAL SECRETARY OF ALL ASSAM GRADUATE NURSE ASSOCIATION

HAVING ITS REGD. OFFICE AT RUKMINIGAON

NABARATNA PATH.

9:GEETANJALI KALITA

MEMBER OF ALL ASSAM GRADUATE NURSES ASSOCIATION

HAVING ITS REGD. OFFICE AT RUKMINIGAON

NABARATNA PATH

PIN- 781022.

10:DEBOJANI NEOG

MEMBER OF ALL ASSAM GRADUATE NURSES ASSOCIATION

HAVING ITS REGD. OFFICE AT RUKMINIGAON

NABARATNA PATH

PIN- 781022.

11:MERAWATI DEVI

MEMBER OF ALL ASSAM GRADUATE NURSES ASSOCIATION

HAVING ITS REGD. OFFICE AT RUKMINIGAON

NABARATNA PATH

PIN- 781022.

12:SONU RONGPI

MEMBER OF ALL ASSAM GRADUATE NURSES ASSOCIATION

HAVING ITS REGD. OFFICE AT RUKMINIGAON

NABARATNA PATH

PIN- 781022.

13:MAMANI BALIMARA

Page No.# 3/24

MEMBER OF ALL ASSAM GRADUATE NURSES ASSOCIATION

HAVING ITS REGD. OFFICE AT RUKMINIGAON

NABARATNA PATH

PIN- 781022.

14:MRIDULI RONGHAPI

MEMBER OF ALL ASSAM GRADUATE NURSES ASSOCIATION

HAVING ITS REGD. OFFICE AT RUKMINIGAON

NABARATNA PATH

PIN- 781022.

15:ANJU THAKURIA

MEMBER OF ALL ASSAM GRADUATE NURSES ASSOCIATION

HAVING ITS REGD. OFFICE AT RUKMINIGAON

NABARATNA PATH

PIN- 781022.

16:GRAULALMISANG

MEMBER OF ALL ASSAM GRADUATE NURSES ASSOCIATION

HAVING ITS REGD. OFFICE AT RUKMINIGAON

NABARATNA PATH

PIN- 781022.

17:HIRUMONI PAIT

MEMBER OF ALL ASSAM GRADUATE NURSES ASSOCIATION

HAVING ITS REGD. OFFICE AT RUKMINIGAON

NABARATNA PATH

PIN- 781022.

18:ANU SAIKIA

MEMBER OF ALL ASSAM GRADUATE NURSES ASSOCIATION

HAVING ITS REGD. OFFICE AT RUKMINIGAON

NABARATNA PATH

PIN- 781022.

19:MAMITA DUTTA

MEMBER OF ALL ASSAM GRADUATE NURSES ASSOCIATION

HAVING ITS REGD. OFFICE AT RUKMINIGAON

NABARATNA PATH

PIN- 781022.

20:RIJUMONI GOGOI

MEMBER OF ALL ASSAM GRADUATE NURSES ASSOCIATION

HAVING ITS REGD. OFFICE AT RUKMINIGAON

NABARATNA PATH

PIN- 781022.

21:REKHA BORAH

Page No.# 4/24

MEMBER OF ALL ASSAM GRADUATE NURSES ASSOCIATION

HAVING ITS REGD. OFFICE AT RUKMINIGAON

NABARATNA PATH

PIN- 781022.

22:POLY SAIKIA

MEMBER OF ALL ASSAM GRADUATE NURSES ASSOCIATION

HAVING ITS REGD. OFFICE AT RUKMINIGAON

NABARATNA PATH

PIN- 781022.

23:LINA BORGOHAIN

MEMBER OF ALL ASSAM GRADUATE NURSES ASSOCIATION

HAVING ITS REGD. OFFICE AT RUKMINIGAON

NABARATNA PATH

PIN- 781022.

24:SHOVE ROY

MEMBER OF ALL ASSAM GRADUATE NURSES ASSOCIATION

HAVING ITS REGD. OFFICE AT RUKMINIGAON

NABARATNA PATH

PIN- 781022

Advocate for the Petitioner : MR. R C SAIKIA, MR B P BORAH

Advocate for the Respondent : SC, HEALTH AND F W, MR R SINGHA,MS S PATOWARY,MR R

SINGHA (R-7,8, 17 TO 23),MR. U K NAIR (R-7,8, 17 TO 23)

Linked Case : WP(C)/6006/2021

GUNAKANTI GOHAIN

B.SC. NURSE AND 20 ORS.

W/O DR. AMULYA KUMAR HAZARIKA

R/O ANANDANAGAR

BYE LANE NO. 3

PRAGJYOTISH APARTMENT

DIST-KAMRUP(M)

PIN-781032

2: KHADEZA KHATUN

B.SC. NURSE

W/O S.H BORBHUYA

R/O NANAK NAGAR

Page No.# 5/24

BHANGAGARH

GMCH ROAD

P.O.-DISPUR

PIN-781005

3: JURI BHUYAN

B.SC NURSE

C/O MATRON OFFICE

GUWAHATI MEDICAL COLLEGE AND HOSPITAL

PIN-32

4: UPASANA DEKA

B.SC. NURSE

C/O MATRON OFFICE

GMCH BHANGAGARH

GHY-32

5: SUWALA DEKA

B.SC NURSE

W/O DIPAK DAS

R/O VILL-BORBARI

VIP ROAD

SHIVA NAGAR

P.O.-UDAYAN VIHAR

DIST-KAMRUP(M)

GHY-781171

ASSAM

6: PANCHAMI DEKA

B.SC NURSE

D/O LATE LAKHIRA DEKA

R/O VILL-SENIGAON

P.O.-GARESHWAR

DIST-BAKSA

ASSAM

PIN-781364

7: NIRALA DEKA

B.SC NURSE

W/O RAJANIKANTA DEKA

R/O VILL-RUPNAGAR

NEAR L.P. SCHOOL

P.O.-INDRAPUR

P.S.-PALTANBAZAR

DIST-KAMRUP(M)

GHY-32

8: KABITA KALITA

Page No.# 6/24

B.SC NURSE

W/O GUNAJIT DAS

R/O SIXMILE

KHANAPARA

GUWAHATI-781022

DIST-KAMRUP (M)

ASSAM

9: MINA BALA DAS

B.SC NURSE

C/O ARJUN THAKURIA

HENGRABARI

LICHUBAGAN

P.O.-HENGRABARI

DIST-KAMRUP(M)

GHY-781036

10: PABITRA DEKA

B.SC NURSE

W/O DEBEN KALITA

R/O SHIVALIK ENCLAVE

BRIDABAN PATH

RUPNAGAR

GHY

PIN-781032

DIST-KAMRUP(M)

ASSAM

11: NAMITA PATHAK

B.SC NURSE

W/O MATILAL DAS

VILL- GANDHINAGAR

P.O.-BARPETA

DIST- BARPETA

ASSAM

PIN-781301

12: BIJAYA LAHON

GNM

C/O MUNIN GOGOI

GNM

R/O RAJGARH SARASWATI PHARMACY

P.O.-RAJGARH

GUWAHATI-781003

DIST-KAMRUP(M)

ASSAM

13: DEBA BALA TAMULI

Page No.# 7/24

GNM

C/O BRAJEN DUTTA

R/O VILL- RANGAIHABI GAON

P.O.-CHALIHA

DIST- JORHAT

ASSAM

PIN-785004

14: DEVA PROVA PHUKON

GNM

C/O DR ANANADA NEOG

R/O SAMANNAY PATH

JAIL ROAD

JORHAT

DIST-JORHAT

ASSAM

PIN-785001

15: JUNAIL CHUTIA

GNM

C/O RAHUL KUMAR DUTTA

R/O TENGAKHAT MODEL HOSPITAL

DIST-DIBRUGARH

PIN-786103

16: HEMA PRAVA HAZARIKA

GNM

C/O HARESWAR DAS

TEOK TELIA GAON

P.O.-TEOK

DIST-JORHAT

PIN-785112

17: LABANYA DEVI

GNM

C/O HARAKANTA DEKA

VILL-MORIGAON

P.O.-MORIGAON

DIST-MORIGAON

PIN-782105

ASSAM

18: REKHA BORA

GNM

W/O DR. BANAMALI BHUYAN

KALYANPUR

P.O.-BISWANATH CHARIALI

DIST-BISWANATH

Page No.# 8/24

ASSAM

19: ARUNA SAIKIA

GNM

W/O SHIR KAMALA KALITA

SANTIPUR HILL SIDE

GUWAHATI-781301

DIST-KAMRUP(M)

ASSAM

20: KAJEK INGTIPI

GNM

C/O LATE STEPHEN KILLING HAMREN CIVIL HOSPITAL

P.O.-HAMREN

PIN-782486

DIST- KARBI ANGLONG

ASSAM

21: MONORAMA SONOWAL

GNM

C/O UDDAB CHANDRA NATH

R/O NEAR ISKCON TEMPLE

VILL-RONGHENG-A

P.O.-DIPHU

DIST-KARBI NAGLONG

ASSAM

KARBI ANGLONG

VERSUS

THE STATE OF ASSAM AND 23 ORS.

REPRESENTED BY THE PRINCIPAL SECRETARY TO THE GOVERNMENT OF

ASSAM

HEALTH AND FAMILY WELFARE (A) DEPARTMENT

DISPUR

GUWAHATI-781006

2:THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF ASSAM

HEALTH AND FAMILY WELFARE (A) DEPARTMENT

DISPUR

GUWAHATI-781006

3:THE SECRETARY TO THE GOVERNMENT OF ASSAM

HEALTH AND FAMILY WELFARE (A) DEPARTMENT

DISPUR

GUWAHATI-781006

4:THE DIRECTOR OF HEALTH SERVICES

GOVERNMENT OF ASSAM

Page No.# 9/24

HENGRABARI

GUWAHATI-36

ASSAM

5:ADDITIONAL DIRECTOR OF HEALTH SERVICES (ADMN)

ASSAM

HENGRABARI

GHY-36

6:THE JOINT DIRECTOR OF HEALTH SERVICES (NURSING)

HENGRABARI

GUWAHATI

ASSAM

PIN-781036

7:ALL ASSAM GRADUATE NURSES ASSOCIATION

HAVING ITS REGISTERED OFFICE AT RUKMINI GAON

NABARATNA PATH REPRESENTED BY ITS GENERAL SECRETARY SMT

JUNU SARMA

8:SMTI JUNU SARMA

W/O SRI NIRANJAN SARMA

R/O RUKMINI GAON

NABARATNA PATH

HOUSE NO-4

P.O.-KHANAPARA

GUWAHATI-781022

DIST- KAMRUP(M)

GENERAL SECRETARY OF ALL ASSAM GRADUATE NURSE ASSOCIATION

HAVING ITS REGISTERED OFFICE AT RUKMINIGAON

NABARATNA PATH

9:GEETANJALI KALITA

MEMBER OF ALL ASSAM GRADUATE NURSES ASSOCIATION HAVING ITS

REGISTERED OFFICE AT RUKMINIGAON

NABARATNA PATH

PIN-781022

DIST-KAMRUP(M)

ASSAM

10:DEBOJANI NEOG

MEMBER OF ALL ASSAM GRADUATE NURSES ASSOCIATION HAVING ITS

REGISTERED OFFICE AT RUKMINIGAON

NABARATNA PATH

PIN-781022

DIST-KAMRUP(M)

ASSAM

Page No.# 10/24

11:MERAWATI DEVI

MEMBER OF ALL ASSAM GRADUATE NURSES ASSOCIATION HAVING ITS

REGISTERED OFFICE AT RUKMINIGAON

NABARATNA PATH

PIN-781022

DIST-KAMRUP(M)

ASSAM

12:SONU RONGPI

MEMBER OF ALL ASSAM GRADUATE NURSES ASSOCIATION HAVING ITS

REGISTERED OFFICE AT RUKMINIGAON

NABARATNA PATH

PIN-781022

DIST-KAMRUP(M)

ASSAM

13:MAMANI BALIMARA

MEMBER OF ALL ASSAM GRADUATE NURSES ASSOCIATION HAVING ITS

REGISTERED OFFICE AT RUKMINIGAON

NABARATNA PATH

PIN-781022

DIST-KAMRUP(M)

ASSAM

14:MRIDULI RONGHAPI

MEMBER OF ALL ASSAM GRADUATE NURSES ASSOCIATION HAVING ITS

REGISTERED OFFICE AT RUKMINIGAON

NABARATNA PATH

PIN-781022

DIST-KAMRUP(M)

ASSAM

15:ANJU THAKURIA

MEMBER OF ALL ASSAM GRADUATE NURSES ASSOCIATION HAVING ITS

REGISTERED OFFICE AT RUKMINIGAON

NABARATNA PATH

PIN-781022

DIST-KAMRUP(M)

ASSAM

16:GRAULAL MISANG

MEMBER OF ALL ASSAM GRADUATE NURSES ASSOCIATION HAVING ITS

REGISTERED OFFICE AT RUKMINIGAON

NABARATNA PATH

PIN-781022

DIST-KAMRUP(M)

ASSAM

Page No.# 11/24

17:HIRUMONI PAIT

MEMBER OF ALL ASSAM GRADUATE NURSES ASSOCIATION HAVING ITS

REGISTERED OFFICE AT RUKMINIGAON

NABARATNA PATH

PIN-781022

DIST-KAMRUP(M)

ASSAM

18:ANU SAIKIA

MEMBER OF ALL ASSAM GRADUATE NURSES ASSOCIATION HAVING ITS

REGISTERED OFFICE AT RUKMINIGAON

NABARATNA PATH

PIN-781022

DIST-KAMRUP(M)

ASSAM

19:MAMITA DUTTA

MEMBER OF ALL ASSAM GRADUATE NURSES ASSOCIATION HAVING ITS

REGISTERED OFFICE AT RUKMINIGAON

NABARATNA PATH

PIN-781022

DIST-KAMRUP(M)

ASSAM

20:RIJUMONI GOGOI

MEMBER OF ALL ASSAM GRADUATE NURSES ASSOCIATION HAVING ITS

REGISTERED OFFICE AT RUKMINIGAON

NABARATNA PATH

PIN-781022

DIST-KAMRUP(M)

ASSAM

21:REKHA BORAH

MEMBER OF ALL ASSAM GRADUATE NURSES ASSOCIATION HAVING ITS

REGISTERED OFFICE AT RUKMINIGAON

NABARATNA PATH

PIN-781022

DIST-KAMRUP(M)

ASSAM

22:POLY SAIKIA

MEMBER OF ALL ASSAM GRADUATE NURSES ASSOCIATION HAVING ITS

REGISTERED OFFICE AT RUKMINIGAON

NABARATNA PATH

PIN-781022

DIST-KAMRUP(M)

ASSAM

Page No.# 12/24

23:LINA BORGOHAIN

MEMBER OF ALL ASSAM GRADUATE NURSES ASSOCIATION HAVING ITS

REGISTERED OFFICE AT RUKMINIGAON

NABARATNA PATH

PIN-781022

DIST-KAMRUP(M)

ASSAM

24:SHOVE ROY

MEMBER OF ALL ASSAM GRADUATE NURSES ASSOCIATION HAVING ITS

REGISTERED OFFICE AT RUKMINIGAON

NABARATNA PATH

PIN-781022

DIST-KAMRUP(M)

ASSAM

------------

Advocate for : MR. R C SAIKIA

Advocate for : SC

HEALTH appearing for THE STATE OF ASSAM AND 23 ORS.

B E F O R E

Hon’ble MR. JUSTICE SANJAY KUMAR MEDHI

Advocate for the petitioners: Shri RC Saikia, Sr. Counsel

Ms. K. Saikia

Ms. R. Bharali

Advocate for the respondent: Shri DP Borah, SC-Health Department

Shri R. Singha, Pvt. Respondents

Dates of hearing : 03.03.2025 & 04.03.2025

Date of Judgment : 21.03.2025

Judgment & Order

Both the writ petitions being intrinsically connected and filed by the

same petitioners, the same were analogously heard and disposed of by this

common judgment and order. The grievance is on the aspect of promotion

Page No.# 13/24

of the petitioners vis-à-vis the private respondents.

2. There is a chequered history in these cases. The petitioners were

promoted to the rank of Assistant Matrons in the Health and Family Welfare

Department, Government of Assam (hereinafter the Department) as per

recommendation of the DPC in the year 2018. Such promotions were

however the subject matter of WP(C)/3069/2018 instituted by the All

Assam Graduate Nurses Association. The said writ petition was allowed by

this Court vide judgment and order dated 16.11.2020 as it was noticed that

such promotions were made on the basis of two Gradation Lists which had

culminated in the order dated 11.04.2018. The promotions orders were

accordingly interfered with a further direction that a fresh promotion

exercise be made in accordance with law. The petitioners herein had

assailed the said judgment in WA/25/2021 which was however dismissed

vide judgment and order dated 01.02.2021. Certain other writ appeals were

also dismissed in the same line. After the matter was remanded, a common

Gradation List in the rank of Staff Nurse was prepared. The grievance of the

petitioners is that the private respondents are junior to them but have been

placed above them in the Gradation List. It is contended that the

appointments of the private respondents as Staff Nurse were not in

accordance with law and in any case were made after that of the

petitioners and therefore, they could not have stole a march over the

petitioners in the Gradation List. It is also contended that it is only in the

year 2021 upon publication of the Draft Gradation List that the petitioners

could come to know about such appointments and therefore, could make

the challenge.

3. In the first writ petition being WP(C)/2940/2021, the Gradation List

Page No.# 14/24

dated 30.03.2021 was put to challenge and in the subsequent writ petition

WP(C)/6006/2021, the promotion to the post of Sister Tutors to the private

respondents have been specifically challenged.

4. I have heard Shri RC Saikia, learned Senior Counsel assisted by Ms.

R. Bharali, learned counsel for the petitioners. I have also heard Shri DP

Borah, learned Standing Counsel of the Department and Shri R. Singha,

learned counsel for the private respondents.

5. Shri Saikia, learned Senior Counsel for the petitioners has, at the

outset, clarified that so far as the earlier promotions made in the year 2018

are concerned, which were interfered by this Court, he is not joining any

issue. The grievance is however in the manner the subsequent Gradation

List was prepared and from the said Gradation List, promotions to the rank

of Sister Tutors / Assistant Matrons have been affected. He submits that it

was only on the publication of the Draft Gradation List on 13.03.2021 in the

rank of Sister Tutor / Ward Sister that the promotion / appointment of the

private respondents could be noticed. He has also submitted that against

the Draft Gradation List, an objection was filed on 12.04.2021 and after

taking recourse to the RTI Act to obtain certain information, a pleader’s

notice dated 12.07.2021 was also served on the Director, which however

were not responded to.

6. By drawing the attention of this Court to the Assam Nursing Services

Rules, 1991 (hereinafter the Rules of 1991), the learned Senior Counsel has

submitted that the said Rules lay down the procedure for appointment and

promotion. He has submitted that under Rule 22, the Gradation List is to be

prepared and published every year and in the instant case, the same has

not been done. He has also submitted that the post of Sister Tutor is a

Page No.# 15/24

promotional post which is to be filled up from Staff Nurse and there is no

procedure for direct appointment. He has also referred to Rule 11

pertaining to appointment by promotion and under Rule 11(3)(b) there is a

requirement of serving at least 5 years as Staff Nurse to be eligible for next

promotion. He has also referred to Rule 12 which lays down the “General

Procedure for Promotion”. Reference has also been made to the Schedules

to the Rules, more particularly Schedule I and Schedule III and under

Schedule III, the qualification of Staff Nurse is laid down.

7. He has clarified that out of the 21 nos. of petitioners, petitioner Nos.

1 to 11 are all B.Sc. Nurses and petitioner Nos. 12 to 21 are Diploma

holders with the requisite training. He has also informed that out of the

aforesaid 21 petitioners, about 9 of them have retired from service on

attaining the age of superannuation.

8. He has also drawn the attention of this Court to the details furnished

by the Department on the aspect of Staff Nurse and has submitted that

with regard to the incumbents against Sl. Nos. 90 to 94, who have been

made respondents, even the dates of joining as Staff Nurse were not

indicated. The learned Senior Counsel accordingly submits that the relief

prayed for may be granted.

9. Per contra, Shri Borah, learned Standing Counsel of the Department

has raised the preliminary objection on the maintainability of the writ

petitions. He has submitted that the prayers in the writ petitions are to

interfere with the orders of promotion to the rank of Sister Tutors of the

private respondents which were in the period 2004-2017 and the petition

have been instituted in the year 2021 and therefore, on the ground of delay

itself, the writ petitions are not maintainable.

Page No.# 16/24

10. By referring to the Rules of 1991, the learned Standing Counsel has

submitted that so far as the post of Sister Tutor is concerned, there is no

particular mention of the said post with regard to the nature of entry i.e.

whether it is by direct recruitment or by promotion. So far as the

appointments of respondent nos. 9, 10, 11, 12, 13 and 14 are concerned,

they were appointed directly as Sister Tutor by Karbi Anglong Autonomous

Council (KAAC) as the post is equivalent to Grade III and powers of

appointment to Grade III are conferred upon the Council. He has submitted

that Health is a transferred subject on which the Council exercises powers

of appointment. He submits that in any case, KAAC has not been made a

party respondent and therefore, the challenge to the aforesaid

appointments is not proper as the decision to appoint was of the Council.

11. With regard to the other respondents, Shri Borah, the learned

Standing Counsel has submitted that all of them were initially appointed as

Staff Nurse and after completion of 5 years, they were considered and

promoted to the rank of Sister Tutor. He reiterates that such appointments /

promotions were made by following the due process of law.

12. The learned Standing Counsel has also submitted that during the

pendency of the writ petitions, all the petitioners and private respondents

have further been promoted to the rank of Assistant Matron and therefore,

for all practical purposes, there is no existing cause of action to be

adjudicated. He has submitted that after such promotion, the seniority in

the cadre of Sister Tutor has become inconsequential.

13. Endorsing the submission made on behalf of the Department, Shri R.

Singha, learned counsel for the private respondents has at the outset,

submitted that the prayer in both the writ petitions are identical and

Page No.# 17/24

therefore, the second writ petition is barred under the provisions of Order

II Rule 2 of the CPC. He has also referred to the findings of this Court in

the judgment and order dated 16.11.2020 passed in WP(C)/3069/2018,

pursuant to which the Gradation List was published and promotions made.

He has submitted that apart from the fact that respondent nos. 9 to 14

were appointed by the KAAC, such appointments were made more than a

decade ago and in fact, few of the appointments are of the year 2004 and

in the instant writ petitions have been filed in the year 2021.

14. He has submitted that all the petitioners are not B.Sc. Nurses and

few of them are G.N.M. He has also submitted that the petitioners have

prayed for setting aside the entire list dated 30.03.2021 whereas all the

parties who would be affected have not been arrayed as respondents and

therefore, on the ground of non-joinder, the writ petitions are liable to be

dismissed. He has also raised the point of approbation and reprobation by

contending that the petitioners are themselves beneficiaries of the same

Gradation List inasmuch as, they have also been promoted to the rank of

Assistant Matron and therefore, cannot maintain the challenge.

15. He has also contended that the challenge is a belated one and

therefore, is liable to be rejected at the threshold. He submits that in

matters of promotion, the challenge has to be instituted within a maximum

period of 12 months and in the instant case, the cause of action with

regard to certain private respondents had arisen in the year 2004 and

thereafter, and the challenge has been instituted in the year 2021. In this

connection, he has placed reliance upon the judgment of the Hon’ble

Supreme Court in P.S. Sathasivaswamy Vs. State of Tamil Nadu

reported in (1975) 1 SCC 152. For ready reference, the relevant extract

Page No.# 18/24

has been reproduced hereinbelow-

“2. … A person aggrieved by an order of promoting a junior over

his head should approach the Court at least within six months or at

the most a year of such promotion. It is not that there is any period

of limitation for the Courts to exercise their powers under Article 226

nor is it that there can never be a case where the Courts cannot

interfere in a matter after the passage of a certain length of time.

But it would be a sound and wise exercise of discretion for the

Courts to refuse to exercise their extraordinary powers under Article

226 in the case of persons who do not approach it expeditiously for

relief and who stand by and allow things to happen and then

approach the Court to put forward stale claims and try to unsettle

matters. The petitioner's petition should, therefore, have been

dismissed in limine. Entertaining such petitions is a waste of time of

the Court. It clogs the work of the Court and impedes the work of

the Court in considering legitimate grievances as also its normal

work. We consider that the High Court was right in dismissing the

appellant's petition as well as the appeal.”

16. In his rejoinder, Shri Saikia, the learned Senior Counsel has however

taken exception to the manner in which the private respondents have filed

a common affidavit-in-opposition by submitting that the defence has to be

made individually and in any case, there is no authorization letter by the

other private respondents in favour of the deponent of the said affidavit.

With regard to the aspect of filing two writ petitions, he has submitted that

due explanation have been given in paragraph 34 as to why the second writ

petition has been filed. As regards the educational qualification, he has

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reiterated that while the petitioner nos. 1 to 11 are all having B.Sc. Nursing

qualification, the rest are G.N.M. with however the requisite period of

training. He has therefore refuted that the petitioners are not duly qualified.

17. As regards the objection concerning delay in filing the writ petitions,

the learned Senior Counsel has submitted that it was only on publication of

the notice dated 30.03.2021 inviting objections with which the provisional

Gradation List was published that the petitioners came to know the facts of

such appointments / promotions. He submits that though there is a

mandate under the Rules to make yearly publication of the Gradation List,

that was not done and therefore, the aspect of delay would not come in the

way of making the present challenge.

18. He has also highlighted that in the second writ petition, there is an

order dated 12.11.2021, as per which, the appointment of the private

respondent nos. 8 to 14 to the rank of Sister Tutors would be subject to the

outcome of the writ petition. The learned Senior Counsel has however fairly

submitted that in case, on account of delay or for any other reason

including the aspect that further promotions have been made in the

meantime to the rank of Assistant Matron, the challenge is not considered

by this Court, a direction should be given to duly consider the cases of the

petitioners for further promotion to the rank of Matrons.

19. On the objection of delay in instituting the writ petition, Shri Saikia,

learned Senior Counsel has refuted the same and has relied upon the case

of ONGC Ltd. Vs. Nippon Steel Corpn. Ltd. reported in (2007) 2 SCC

382. In the said case, it was held that the objections to an arbitral award

was not barred by time.

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20. The rival contentions of the learned counsel for the parties have

been duly considered.

21. The grounds of challenge which reveal from the materials on record

are on the aspect that the private respondents were junior to the

petitioners. There is also a specific allegation against respondent nos. 9, 10,

11, 12, 13 and 14 who were directly appointed as Sister Tutors by

contending that such post can only be filled up by promotion. The Rules

holding the field have also been relied upon by the rival parties. There is

also a preliminary objection that the second writ petition being

WP(C)/6006/2021 is not maintainable and in this connection, the learned

counsel for the private respondents has relied upon Order 2 Rule 2 of the

CPC.

22. Let this Court first deal with the preliminary objection on the

maintainability of the second writ petition. The second writ petition has

been instituted mainly to call for the records of Sister Tutor of the parties

involved by making a specific challenge as such prayer was not there in the

first WP(C)/2940/2021. Though ideally, there should not be any multiplicity

of proceedings, in the instant case, no prejudice, whatsoever has been

caused to the contesting respondents by filing of the second writ petition.

As regards the reliance upon Order 2 Rule 2 of the CPC, it is trite law that it

is only the spirit of the CPC which can be made applicable in a writ

proceedings and in any case, the explanation to Section 141 of the CPC has

clarified that the procedure provided in the Code is not required be followed

in a proceeding under Article 226 of the Constitution of India. For ready

reference, Section 141 of the CPC is extracted hereinbelow-

“141. Miscellaneous proceedings:

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The procedure provided in this Code in regard to suits shall be

followed, as far as it can be made applicable, in all proceedings in

any Court of civil jurisdiction.

[Explanation .-In this section, the expression "proceedings" includes

proceedings under Order IX, but does not include any proceeding

under Article 226 of the Constitution.]”

23. Let this Court now deal with the challenge regarding respondent nos.

9, 10, 11, 12, 13 and 14. It is not in dispute that the said respondents were

directly appointed as Sister Tutors. The learned Standing Counsel of the

Department had however submitted that the aforesaid appointments were

made by the KAAC as the concerned Health and Family Welfare Department

is a transferred subject wherein the Council is empowered to make

appointments. He has also submitted that the concerned post is of Grade

III wherein such powers of appointments are vested with the Council. This

Court has however noticed that the appointing authority, namely, the KAAC

has not been made a party respondent and therefore, it would not be

proper at all to enter into the said dispute without giving an opportunity. It

is also seen that the appointments were made long before (more than a

decade) and it would otherwise also not be in the interest of justice to

interfere with such appointments in these writ petitions instituted in the

year 2021.

24. As regards the challenge qua the other private respondents, this

Court has noticed that initially, two Gradation Lists were prepared and the

said action was the subject matter of challenge in WP(C)/3069/2018

instituted by the respondent nos. 7 – Association and the said writ petition

was allowed vide judgment dated 16.11.2020. The said judgment was also

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upheld by the Hon’ble Division Bench in WA/25/2021 whereafter, the

Gradation List was published in the year 2021. Admittedly, there is no

further challenge to the said Gradation List. The challenge rather is on the

initially appointment / promotion of the private respondents which were of

a period which is sufficiently long. The said aspect has been tried to be

explained by the learned Senior Counsel for the petitioners by contending

that it was only on the publication of the notice dated 12.04.2021 that the

entire facts were revealed. Whether such explanation can be readily

accepted is itself an issue. The case of Nippon Steel (supra) relied upon

by the petitioners will have no application in the instant case as the same

was in the context of filing of objection to an arbitral award which was held

not to be barred by time.

25. On the contention / objection raised on behalf of the petitioners on a

common affidavit filed by the private respondents, this Court is of the view

that while a number of parties approaching the Court as petitioners in one

petition filed jointly can have the pleadings verified by an affidavit by one of

the petitioners who has to be authorized, when the appointment /

promotions of a number of persons are put to challenge, the counter

affidavit to such pleadings has to be individually made. This is required

inasmuch as, each of such respondents would have to defend his own case

in which the particulars would be different. There however would be no bar

to have such respondents representing by a common counsel but the

pleadings opposing such petition is required to be distinct. However, there

are certain other factors which are to be taken into consideration in the

adjudication of the present case.

26. As would reveal from the submissions made by the learned Standing

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Counsel of the Department, in the years 2021 and 2022 all the petitioners

who were in service and the private respondents (members of the

respondent - Association) have been given the benefit of promotions to the

rank of Assistant Matron. It therefore, appears that the aspect of seniority

in the cadre of Sister Tutor has become inconsequential, more so, when for

subsequent promotion, it is the seniority in the feeder cadre which would

play some role. This Court has also noticed that under Rule 12(4), the

procedure for promotion have been laid down to be “Merit with due regard

to Seniority”. It therefore become clear that the aspect of seniority would

not be the prominent aspect for such promotion.

27. When such facts and submissions were made on behalf of the

Department, it was responded by the learned Senior Counsel for the

petitioners that so far as the further promotion from the rank of Assistant

Matron to Matron is concerned, the petitioners’ cases should be considered

in accordance with law. The learned Standing Counsel had however

informed that the Gradation List in the rank of Assistant Matron is yet to be

prepared in which any party aggrieved by the seniority or any other issue

would have the opportunity to lodge a complaint before its finalization and

only thereafter, the promotions can be affected. This Court is of the view

that the apprehension raised on behalf of the petitioners cannot be

countenanced at this stage, as no such cause of action has arisen as yet.

28. In the case of P.S. Sathasivaswamy (supra) it has been laid down

that a challenge to promotion should be made within an outer limit of 12

months as any belated challenge would amount to unsettling settled

position. In any case, a Writ Court is a Court of Equity wherein the bona

fide and diligence of a party approaching the Court are relevant

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considerations. This Court is also of the view that since further promotions

to the rank of Assistant Matron have been affected in the years 2021 and

2022 giving benefits to the rival parties, the said aspect of challenge

belatedly made is not required to be gone into.

29. As would reveal from the submissions made on behalf of the

Department, the Gradation List in the rank of Assistant Matron is yet to be

prepared and only after such preparation, further promotion to the rank of

Matron would be able to be made. This Court has also taken into

consideration that though the writ petition was instituted by 21 petitioners,

9 of them have already retired from the service on attaining the age of

superannuation. However, considering the prayer made on behalf of the

petitioners with regard to further promotions to the rank of Matron, it is

directed that the Gradation List in the rank of Assistant Matron be made

strictly in accordance with law and if the Department decides to undertake

an exercise for any promotions, the same is to be done strictly in

accordance with law and particularly by following the prescription of the

Rules of 1991.

30. Both the writ petitions accordingly stand disposed of in the manner

indicated above. Interim order, if any, stands merged with the final order.

31. No order as to cost.

JUDGE

Comparing Assistant