Gauhati High Court Directs Govt To Appoint ICU Technicians Selected During Covid-19, Says Their Need In Hospitals Will Never Be Reduced
The Gauhati High Court recently set aside the judgement passed by the single judge of the High Court which denied to issue a mandamus in favour of nineteen ICU Technicians, who were appointed during Covid-19 pandemic in the year 2020, for permanent appointment as a consequence of the Select List against the advertised posts, on the ground that the Select List in question was never cancelled...
The Gauhati High Court recently set aside the judgement passed by the single judge of the High Court which denied to issue a mandamus in favour of nineteen ICU Technicians, who were appointed during Covid-19 pandemic in the year 2020, for permanent appointment as a consequence of the Select List against the advertised posts, on the ground that the Select List in question was never cancelled and the said vacant posts were not included in the fresh advertisement issued by the Government.
The division bench of the Chief Justice Sandeep Mehta and Justice Kardak Ete observed:
“It is also an admitted position that many other similarly placed candidates, who were selected through the very same process, i.e. walk-in-interview pursuant to the initial advertisement dated 10.07.2020 were appointed, are serving on their respective posts. It is not in dispute that till date, the State Government has neither framed any Rules nor any formal process has been evolved governing the selection and appointment of ICU Technicians in the State. The requirement of ICU Technicians across the Government medical facilities would never be reduced and, rather, the need for such technicians is ever persisting and increasing.”
Brief Facts
During the Covid-19 pandemic, the Government of Assam, Health and Family Welfare Department, created 800 posts of “Health Workers” including 128 posts of Laboratory Technicians (ICU Technical) to operate 32 newly created ICU units. An advertisement dated July 10, 2020 was issued by the Director of Health Services, Assam, for filling up 640 posts of Staff Nurse and 128 posts of Laboratory Technicians.
A total of 99 candidates were selected in this selection process against the 108 (later reduced from 128 to 108) posts advertised for Laboratory Technicians and a Select List dated September 12, 2020 was published. Out of the 99 selected candidates, only 40 candidates joined their respective posts and, as a result, 68 posts of ICU Technicians remained vacant.
The said 68 posts of ICU Technicians were readvertised in continuation of the earlier advertisement. The result of the selection process was published vide notice dated November 03, 2020 declaring 22 candidates to be selected. Out of the 22 selected candidates, 21 appeared for document verification which included the present appellants and other writ petitioners before the single judge bench.
Since appointment letters were not being issued despite publication of the Select List, the appellants along with other selected candidates submitted representations dated August 06, 2021 and August 09, 2021 to the Principal Secretary to the Government of Assam, Health and Family Welfare Department and The Director of Health Services, Government of Assam.
As no action was taken on the said representation, the petitioners approached the High Court by a way of the writ petition for a direction to appoint them against the vacant sanctioned permanent posts of ICU Technicians.
The single judge bench held as follows:
“In the petitioners are not to be appointed as because the dedicated Covid-19 hospitals are no longer in existence and the petitioners are required to apply afresh against the advertisement that may be issued against the same posts in regular hospitals, we further provide that a due weightage be given to the petitioners in case they participate in such selection by taking note of their earlier attitude and approach to also be Covid warriors. We are clarifying that the expression “weightage” to the petitioners should be given its due meaning and should not be equated with “preference” which means that if everything is equal only then a preference is to be given.”
Thus, the present writ appeal was filed by the 14 out of 19 petitioners in the original writ petition before the single judge.
Arguments
Senior Counsel, U. K. Nair appearing for the appellants submitted that the posts, against which the appellants were selected, were permanent in nature and thus the appellants were lawfully selected against permanent sanctioned posts. It was further argued that other candidates akin to the writ petitioners, who were selected through the very similar process of Zoom Interview against the very same posts, have been appointed and are discharging their duties efficiently.
It was submitted that the posts against which the appellants were selected are still lying vacant as the same have neither been re-advertised nor have been filled up by way of any subsequent advertisement. It was argued that the Select List dated November 03, 2020, through which the appellants were selected, has never been cancelled by the Government and, hence, the same continues to remain valid and the appellants are eligible to be appointed against the available vacant posts.
On the Other hand, B. Gogoi, the Standing Counsel, Health & Family Welfare Department, submitted that the selection of the appellants was made in an extra-ordinary emergent situation brought around by the Covid-19 pandemic which no longer exists and hence, the State Government cannot be compelled to offer appointment to the appellants herein on the basis of a stale Select List.
Court’s Analysis
The Court noted that Select List dated November 03, 2020 has never lost its force.
The Court observed:
“It cannot be denied that the State Government is still in need of qualified ICU Technicians. Needless to say that as the Government of Assam proposes extensive expansion plans for the existing medical facilities and new medical facilities are being created across the State of Assam, there would always exist imminent need for ICU Technicians. Mr. Gogoi also could not dispute the fact that the Select List dated 03.11.2020 was never cancelled, which fact has been recorded at paragraph 3 of the affidavit-in-opposition filed by the respondent Nos. 1 and 2 on 16.10.2023.”
Thus, the Court held that the appellants to be appointed against the permanent posts of ICU Technicians as a consequence of the Select List dated November 03, 2020.
“Accordingly, the official respondents are hereby directed to act upon the Select List dated 03.11.2020 so far as the appellants herein are concerned. However, the appellants would have to undergo the skill test as may be prescribed by the competent authority before they can be appointed as ICU Technicians,” the Court said.
Citation: 2023 LiveLaw (Gau) 95
Case Title: Nayan Moni Deka & Ors. v. The State of Assam & 2 Ors.
Case no.: Writ Appeal No. 359/2023