WP(C) 4301/2008 BEFORE THE HON’BLE MRS. JUSTICE ANIMA HAZARIKA JUDGMENT & ORDER Challenge in this writ petition is made against the order of promotion d ated 11.08.2008, whereby and whereunder, the Director of Health Services, Assam, Hengrabari, promoted the respondent No. 6 from the post of Grade IV in the off ice of the Joint Director of Health Services, Hailakandi to the post of Dresser in the scale of pay of Rs. 2610-49-2770-60-3200-EB-60-3490-90-4480/- per month p lus other allowances as admissible under Rules on purely temporary basis and unt il further order with effect from the date of joining as Dresser against the vac ant post of Dresser vice Shri Sujit Kr. Nath, Dresser promoted to the higher pos t. However, in the order of promotion dated 11.08.2008, the respondent No. 2 i.e . the Director of Health Services, Assam, Hengrabari has observed as follows: - The promotion has been made in the strength of the Jt. Director of Health Servi ces, Hailakandi Memo No. 3193 Dated 8.7.2008. 2. Heard Mr. B Banerjee, learned counsel for the petitioner. Also heard Mr. D Saikia, learned Senior Standing counsel, Health Department, Assam, assisted b y Mr. B Gogoi, learned Standing counsel, Health Department Assam appearing for r espondent Nos.1 to 5 and Mr. PD Nair, learned counsel for respondent No.6. 3. The factual matrix of the case is narrated hereinbelow:- The petitioner herein being qualified and eligible, after due se lection alongwith other eligible candidates was appointed to the post of Grade I V in the scale of pay of Rs. 370-5-420-7-490/- by the order of the Chief Medical & Health Officer, Cachar, Silchar dated 25.03.1985 and joined in the said post on 30.03.1985 at Kalinagar Public Health Centre, Cachar, whereof the petitioner was confirmed in the Grade IV post w.e.f. 01.12.2000 vide order dated 22.10.2001 issued by the Joint Director of Health Services, Hailakandi. Thereafter a grada tion list of Grade IV staff alongwith Sweeper was issued on 01.12.2004, wherein the name of the petitioner appeared at Sl. No. 26 whereas the name of the respo ndent No. 6 appeared at Sl. No. 62. The petitioner being senior to the responden t No. 6, he ought to have been promoted to the post of Dresser considering the l ength of service and experience in dressing, injection pushing I-V and I-N, stit ching and catheterization but without considering the above, the respondent No. 6 was promoted to the post of Dresser and the legality and validity of the said promotion order dated 11.08.2008 has been questioned in the writ petition. 4. Mr. Banerjee, learned counsel appearing for the petitioner would contend that admittedly the petitioner is senior to the respondent No. 6 though in the gradation list in the remark column it has been written experience in dressing work in case of the respondent No. 6 and the basis of writing as experience in dressing work has not been divulged though the transfer order of both the petiti oner and the respondent No. 6 alongwith the experience certificates annexed with the petition alongwith the rejoinder would show that the petitioner is not less experienced in dressing works than that of respondent No. 6 thus requiring inte rference with the impugned order of promotion under judicial review in exercise of power under Article 226 of the Constitution of India. 5. Mr. Banerjee would further contend that the impugned order of promotion would indicate that the respondent No. 6 was promoted on the strength of the Joi nt Director of Health Services, Hailakandi Memo No. 3193 dated 08.07.2008 which implies that here was no interview held for promotion to the higher cadre amongs t all the eligible candidates. Mr. Banerjee would contend that admittedly there is no Service Rules regulating the service conditions of grade IV staff under th e Directorate of Health Services, Assam and therefore the seniority alongwith ex perience should have been counted while promoting a junior employee of the depar tment. Thus, violating Article 14 of the Constitution of India, the impugned tra nsfer order had been issued, which cannot be allowed to stand, the same being no t sustainable in law. 6. Criticizing the argument advanced by Mr. Banerjee, Mr. PD Nair, learned counsel representing the respondent No. 6 would contend that the respondent No. 6 was appointed as a General Duty Attendant in Grade IV vide order dated 08.06.1 990 and he has all along been assigned duties in the dressing room of the casual ty department of Hailakandi Civil Hospital and had all along been engaged in cl inical works in the said hospital. The respondent No. 6 has been assisting the d octors and the dresser in the dressing room and operation theatre whereas the ce rtificate annexed in the writ petition relating to the experience certificate of the writ petitioner does not disclose the name of the person as to who had issu ed the certificate and it is a purported certificate of a date subsequent to the order of promotion and hence could not be relied upon and as such the promotio n order of the respondent No. 6 is not required to be interfered with, more so, when the certificates enclosed in the affidavit-in-opposition demands greater w eightage as to the experience of the respondent No.6 as Dresser, which have righ tly been considered while promoting the respondent No. 6. 7. On the other hand, the learned Standing counsel, Health, representing th e official respondents would urge that the record would show that the promotion to the post of Dresser from Grade IV post is offered only on the basis of experi ence in any of the surgical units of any hospital and the respondent No. 6 havin g earned more experience than the petitioner, he was preferred to the petitione r and accordingly respondent No.6 was promoted though there is no Service Rules relating to promotion to the post of Dresser from the post of Grade IV employee s and in absence of Service Rules, the Directorate of Health Services made a cri teria that any employee rendering services of Grade IV for more than 5 years and earning experience in surgical matters is eligible for promotion and the respon dent No. 6 having earned more experience in surgical matters than the writ peti tioner, he has been promoted to the post of dresser which do not come under judi cial review in a writ proceeding. 8. Considered the arguments advanced by the contesting parties. Perused the pleadings of the parties alongwith the records submitted by the learned Standin g counsel, Health Department. The Court directed the learned Standing counsel, H ealth to produce the communication of Joint Director of Health Services, Hailaka ndi bearing Memo No.3193 dated 08.07.2008, mention of which has been made in the impugned promotion order. As per direction of this Court, during the course of hearing, Mr. Gogoi has produced a letter dated nil, addressed to the Director, H ealth Services, Assam through proper channel by the respondent No. 6 praying for promotion to the post of Dresser. Perusal of the same would reveal that the sai d letter has been received by the Superintendent, SK Roy Civil Hospital, Hailaka ndi who has forwarded the same vide No. 759 dated 17.06.2008 to the Joint Direct or of Health Services, Hailakandi. The Joint Director of Health Services sent th e same vide No. 3193 dated 08.07.2008 which has been reflected in the impugned o rder of promotion of the respondent No. 6 dated 11.08.2008 as mentioned hereinab ove, which implies that the respondent No. 6 has been favoured in exclusion of a ll other eligible candidates without adhering the seniority in absence of Servic e Rules, vis-à-vis, the eligibility requirement for promotion from grade IV to t he next higher grade and on this ground alone the impugned order under challenge is required to be interfered with which the court hereby do. 9. In the result the writ petition succeeds. The impugned order of promotio n dated 11.08.2008 issued by the Director of Health Services, Assam, Hengrabari promoting respondent No. 6 to the post of Dresser is hereby set aside and quashe d. The parties are left to bear their costs. 10. Before parting with the judgment, the Court would like to observe that G rade-IV employees of Director of Health Services, Assam, are facing a very uncer tain situation because the Rules regulating their service conditions are yet to be framed. Therefore, the Court deems it fit to direct the concerned authority t o frame Rules regulating the service conditions of Grade IV employees of Directo r of Health Services, Assam, as expeditiously as possible, preferably within a p eriod of 6(six) months from the date of receipt of the certified copy of this or der. 11. The Court hopes and trusts that the authority would frame the Rules with in the period aforementioned.