In matter of appointment in the nursing fraternity, the bench of Rajiv Sahai Endlaw J. and Amit Bansal J. exercised wide discretion while allowing the promotion of 52 nurses employed at AIIMS who initially had been appointed on an ad-hoc basis. The Delhi High Court in the above matter of All India Institute of Medical Sciences v Elsy Jacob [W.P.(C) 4755/2021], provided solidarity with the nurses who have been frontline workers during the pandemic by permitting the promotion by overlooking the technicalities.
The respondents no.1 to 52 filed the O.A. aforesaid, pleading that (i) the respondents no.1 to 52, from time to time, on different dates, from the year 1996 onwards, were interviewed by the Competent Authority and appointed on ad hoc basis, to the temporary post of Sister Grade-II, in the petitioner AIIMS, initially for a period of 3 months, against leave vacancies etc. however the services of the respondents no.1 to 52 were continued, even after expiry of 3 months, without interruption; (iv) though after the date of such ad hoc appointment of respondents no.1 to 52, process of regular appointments to the post of Sister Grade-II in the petitioner AIIMS took place and though the respondents no.1 to 52 and/or some of them participated in the selection process for regular appointment, but none of them was selected or appointed; and, however in the year 2004, each of the respondents no.1 to 52 was appointed on a regular basis, on the terms and conditions mentioned in the letters of appointment then issued to each of them.
It was argued before the bench that though the respondents no.1 to 52 were interviewed prior to their ad hoc appointment, but not by the Selection Committee in accordance with the Recruitment Rules; that the ad hoc appointment of the respondents no.1 to 52 was not in pursuance to any public advertisement or through Employment Exchange but through word of mouth. The respondents no.1 to 52 were not subjected to any probation and thus the period of their ad hoc service cannot be counted for the purposes of seniority and promotion and the same would be contrary to the Recruitment Rules.
The court referred to its power of discretion under Art. 226 of the Constitution through cases Taherakhatoon Vs. Salambin Mohammad (1999) 2 SCC 635 whose ratio consistently followed in Chandra Singh Vs. State of Rajasthan (2003) 6 SCC 545 and Master Marine Services Pvt. Ltd. Vs. Metcalfe and Hodgkinson Pvt. Ltd. (2005) 6 SCC 138 wherein it had been held that Court is empowered not to strike down an illegal order, although it would be lawful to do so. The bench was reluctant, during the time when the entire citizenry was literally in the hands of the nursing profession to which the respondents no.1 to 52 belong, to take away from the respondents no.1 to 52 what has been granted to them by CAT.
The court further added reasoning to its wide discretion by stating that during the prevalent pandemic which has been raging across the country now for the last more than one year and during which time the medical/healthcare professionals, particularly Nurses, to which profession the respondents no.1 to 52 belong, had been sacrificing their own personal comforts and life. Till now everyone had been expressing appreciation for the efforts of the medical/healthcare workers and gratitude to the nursing fraternity, only in words however.
The Court thus ruled that, “In our discretion, refuse to entertain the challenge by way of this writ petition to the order of CAT granting relief to respondent no.1 to 52 Nurses. We, however clarify that the aforesaid order having been made in the circumstances aforesaid, shall not constitute a precedent on the proposition that period of ad hoc service is to be counted in computation of seniority/for the purposes of promotion.”
