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IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
MICHAEL ZOTHANKHUMA, J.
Nabanita Sarma D/o Karam Prasad Sarma – Petitioner
Versus
The State of Assam and Others – Respondents
W.P. (C) No. 4938 of 2022
Decided On : 26-09-2023
Assam Public Service Commission (Limitation of Functions) Regulation, 1951 – Regulation 3(f) - Service Law – Grade of Assistant Professor – Appointed as a Lecturer in Psychiatric Nursing – Promotion – Held, There is another aspect of matter which has to be considered, i.e. if prayer of the petitioner is allowed, same could cause prejudice, as Dulmoni Das is the first in merit list of Lecturer, Psychiatric Nursing - Case of the Dulmoni Das would also have to be considered, as her appointment had been held up on due to writ petition, which had been ultimately dismissed – As her seniority vis-a-vis petitioner would be affected, the non-joinder of Dulmoni Das as a party in the writ petition is also an issue that will have to be considered, as issue of inter-seniority between Lecturers of Psychiatric Nursing would crop up – Ad-hoc service of the petitioner under Regulation 3(f) cannot be considered as regular service – Writ petition dismissed.
JUDGMENT :
MICHAEL ZOTHANKHUMA, J.
1. Heard Mr. S. Borthakur, learned counsel for the petitioner and Mr. D.P. Borah, learned Standing Counsel, Heath Department for all the respondents.
2. The petitioner’s prayer in this writ petition is for a direction to be issued to the State respondents to consider the petitioner’s service under Regulation 3(f) of the Assam Public Service Commission (Limitation of Functions) Regulation, 1951 (hereinafter referred to as “the 1951 Regulation) from 24.03.2017 to 15.10.2019, as regular service and consider her case for promotion to the grade of Assistant Professor.
3. The petitioner’s case is that the petitioner was appointed as a Lecturer in Psychiatric Nursing at BSc. Nursing College, Silchar vide Notification dated 09.10.2013 under Regulation 3(f) of the Assam Public Service Commission (Limitation of Function) Regulation, 1951 pursuant to an advertisement. Thereafter, pursuant to an Advertisement dated 03.07.2015, for filling up various regular posts of Lecturers in different disciplines of the Nursing College of Assam and under the Assam Health & Family Welfare (B) Department, the petitioner took part in the selection process for the post of Lecturer, Psychiatric Nursing under the Nursing College of Assam.
4. The Assam Public Service Commission (APSC), vide letter dated 24.03.2017, recommended various candidates for different posts of Lecturers “Discipline” wise. As per the APSC’s letter dated 24.03.2017, Lecturers in four departments/disciplines were recommended, which are as follows:
2. Lecturer in Obstetrics & Gynaecological Department under H&FW(B) Department.
3. Lecturer, Medical Surgical Nursing/Medical Nursing under H&FW(B) Department.
4. Lecturer, Psychiatric Nursing in the Nursing College of Assam under H&FW(B) Department.
5. For the fourth category of posts of Lecturer, Psychiatric Nursing, the APSC recommended the following candidates (i) Dulmoni Das, (ii) Nabanita Sarma (petitioner) and (iii) Hiramoni Barman.
6. The petitioner’s counsel submits that those persons who were recommended as Lecturers in the three other disciplines, vide letter dated 24.03.2017, were given appointment orders in the year 2017 itself, vide letter dated 07.08.2017. However, the petitioner, Dulmoni Das and Hiramoni Barman were not appointed in the year 2017, as one Kalpana Nath, who was not recommended for the post of Lecturer, Psychiatric Nursing filed WP (C) No. 1991/2017 against Dulmoni Das and Hiramoni Barman, on the ground that they were in-eligible to participate in the selection process. A stay order was issued in WP (C) No. 1991/2017, restraining the State respondents from issuing appointment orders to Dulmoni Das and Hiramoni Barman. Though the petitioner was not made a party in WP (C) No. 1991/2017 and though the stay order did not extend to stoppage of the petitioner’s appointment, the petitioner was also not given any appointment order by the State respondents due to the above stay order. However, the petitioner was allowed to continue working as a Lecturer of Psychiatric Nursing in terms of Regulation 3(f) of the 1951 Regulation, as she had been appointed as Lecturer, Psychiatric Nursing under Regulation 3(f) of the 1951 Regulation, on 09.10.2013.
7. WP (C) No. 1991/2017 was dismissed vide order dated 25.07.2019 and subsequently, the petitioner, Dulmoni Das and Hiramoni Barman were appointed as Lecturers, Psychiatric Nursing in the Nursing College of Assam on 15.10.2019. The petitioner’s prayer in the writ petition is to issue a direction to the respondent authorities, to consider her service as Lecturer under Regulation 3(f) of the 1951 Regulation, from 24.03.2017 to 15.10.2019, as regular service, for the purpose of promotion only. In the alternative, the petitioner prays that the petitioner’s promotion should be from the date the other persons were appointed to their posts in other disciplines and who h
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