The central legal point established in the judgment is the requirement to adhere to the provisions of the Assam Nursing Service Rules, 1991, specifically Rule 22, in conducting promotional exercises.

JUDGMENT

Sanjay Kumar Medhi, J. - The extraordinary jurisdiction conferred upon this Court by Article 226 of the Constitution of India is sought to be invoked by the petitioners who have put to challenge a process of promotion to the ranks of Assistant Matron/Assistant Nursing Superintendent/Deputy Nursing Superintendent as published vide an order dated 11.04.2018.

2. The principal ground of challenge in the aforesaid recruitment process is that the Rules holding the field, viz, The Assam Nursing Service Rules, 1991 (for short 1991 Rules) have been totally overlooked by which grave prejudice and legal injury have been caused to the petitioners.

3. The petitioner no. 1 is an association of the graduate nurses of Assam, namely, All Assam Graduate Nurses' Association (for short Association) and the petitioner no. 2 is the General Secretary of the petitioner no. 1-Association.

4. It is the case of the petitioners that to be eligible to be recruited as Staff Nurse, which is the entry cadre under the aforesaid 1991 Rules, two streams are available, namely, B.Sc. Nursing and GNM. Since the academic qualification of the graduate nurses is higher, higher grade pay is provided to them. However, once they merge into the cadre of Staff Nurse, candidates from both the streams become eligible for promotion to the next higher posts of Ward Sister/Tutor/Public Health Nurse Tutor depending on the criteria provided in the 1991 Rules. It may be mentioned that while Staff Nurses, who come from the stream of GNM can be promoted only to the post of Ward Sister which is essentially meant for services to be rendered in the hospitals in the clinical side, those Staff Nurses, who had entered into the service being graduate nurses have the option to be promoted in any of the three available options of Ward Sister/Tutor/Public Health Nurse Tutor. The members of the petitioners Association are holding the posts in the said cadre of Tutor/Public Health Nurse Tutor.

5. A promotional exercise to the next higher cadre of Assistant Matron/Assistant Nursing Superintendent/Deputy Nursing Superintendent was carried on and as per Rule 22 of the 1991 Rules, a common Gradation List has to be prepared from the Ward Sister/Tutor/Public Health Nurse Tutor and the promotion has to be made to the three posts of Assistant Matron/Assistant Nursing Superintendent/Deputy Nursing Superintendent. However, it appears that two Gradation Lists were prepared on the broad category of Tutors and Ward Sisters. In the ensuing promotions made, all the posts were filled-up by candidates who were working as Ward Sisters and none of the members of the petitioners Association, who were working as Tutors/Public Health Nurse Tutors have been considered for promotion. The reason behind appears to be creation of two gradation lists and consideration of the candidates belonging to the gradation list of Ward Sisters only.

6. I have heard Shri UK Nair, learned Senior Counsel assisted by Shri R Singha, learned counsel for the petitioners. I have also heard Shri DP Borah, learned Standing Counsel, Health & Family Welfare Department. Shri R De, learned counsel is present for the private respondent nos. 8, 10, 12, 14, 15, 16, 20, 28, 31, 33, 34, 36, 37, 41, 44, 45, 46, 47, 48, 49, 51, 52, 53, 54, 55, 56, 57, 60 and 61.

7. At this stage, Shri Nair, learned Senior Counsel has referred to an order dated 25.11.2019 whereby this Court had held the service upon the private respondents is complete in view of the paper publications made in 'The Assam Tribune' and the 'Assamiya Pratidin' in its respective issues dated 14.11.2019. Such publication was directed to be made by this Court vide order dated 25.10.2919.

8. The learned Senior Counsel by referring to the 1991 Rules, more specifically, Rule 22 thereof, has submitted that the condition precedent of having one gradation list has been admittedly violated which is apparent from the pleaded case of the respondent-Department. By referring to the affidavit-in-oppositi