The Gauhati High Court overturned the single judge's decision, granting 19 ICU Technicians permanent appointments. The basis was that the Select List remained valid, and the vacant posts weren't part of a new government advertisement.
The division bench, comprised of Chief Justice Sandeep Mehta and Justice Kardak Ete, made the following observation:
"It is also acknowledged that numerous candidates, in a situation similar to this, were selected through the same walk-in-interview process following the initial 10.07.2020 advertisement and have been working in their respective positions. It is uncontested that the State Government has yet to establish any formal rules or procedures for the selection and appointment of ICU Technicians in the State. The demand for ICU Technicians in government medical facilities remains constant and even grows."
During the COVID-19 pandemic, the Health and Family Welfare Department of the Assam government established 800 "Health Worker" positions, which included 128 Laboratory Technicians (ICU Technical) roles to manage 32 newly established ICU units. On July 10, 2020, the Director of Health Services, Assam, released an advertisement to fill 640 Staff Nurse positions and 128 Laboratory Technician positions.
In this selection process, 99 candidates were chosen for the 108 (initially 128, later reduced to 108) Laboratory Technician positions advertised. A Select List was released on September 12, 2020. However, only 40 of the selected candidates actually took up their positions, leaving 68 ICU Technician posts vacant.
The 68 vacant ICU Technician positions were re-advertised following the initial advertisement. A selection process concluded with results announced on November 3, 2020, where 22 candidates were declared as selected. Of these 22 candidates, 21 participated in document verification, including the present appellants and other petitioners before the single judge bench.
As appointment letters were not being issued despite the publication of the Select List, the appellants, along with other selected candidates, submitted representations on August 06, 2021, and August 09, 2021, to the Principal Secretary of the Government of Assam, Health and Family Welfare Department, and the Director of Health Services, Government of Assam.
Since there was no response or action taken on their representations, the petitioners turned to the High Court by filing a writ petition. They sought a court order to be appointed to the sanctioned permanent ICU Technician positions that remained vacant.
"If the petitioners are not to be appointed because dedicated COVID-19 hospitals no longer exist, and they are required to reapply for the same positions in regular hospitals, we further specify that due consideration should be given to the petitioners if they participate in such a selection process, taking into account their prior commitment and service as COVID warriors. We clarify that the term 'weightage' for the petitioners should be interpreted as per its true meaning and should not be equated with 'preference,' which implies that preference should only be given when all other factors are equal."
Hence, the current writ appeal has been filed by 14 out of the 19 petitioners who were part of the original writ petition before the single judge.
Senior Counsel U. K. Nair, representing the appellants, contended that the positions for which the appellants were selected were inherently permanent, and therefore, their selection was valid for these permanent sanctioned positions. It was also argued that other candidates who were in a similar situation to the writ petitioners, selected through a similar Zoom Interview process for the same positions, have been appointed and are effectively performing their duties.
It was emphasized that the positions for which the appellants were selected remain unfilled, as they have neither been re-advertised nor have been filled through subsequent advertisements. The argument was made that the Select List dated November 03, 2020, which led to the selection of the appellants, has never been officially revoked by the Government. Therefore, it continues to be in force, and the appellants are eligible for appointment to the existing vacant positions.
On the other hand, B. Gogoi, the Standing Counsel for the Health & Family Welfare Department, argued that the selection of the appellants was conducted under extraordinary circumstances arising from the COVID-19 pandemic, which is no longer a prevailing situation. Therefore, the State Government cannot be compelled to provide appointments to the appellants based on an outdated Select List.
TAGS: Senior Counsel U. K. Nair Permanent posts Valid selection Unfilled positions Select List.
