CIVIL WRIT PETITION No.19831 of 2013 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CIVIL WRIT PETITION NO.19831 of 2013 DATE OF DECISION: FEBRUARY04 2014 Suman .....Petitioner VERSUS State of Haryana and others ....Respondents CORAM:- HON'BLE MR.JUSTICE AUGUSTINE GEORGE MASIH1 Whether Reporters of local papers may be allowed to see the judgement?.
2.
To be referred to the Reporters or not?.
3.
Whether the judgment should be reported in the Digest?.
Present: Mr.Jitender Dhanda, Advocate for the petitioner.
Mr.Sunil Nehra, Sr.D.A.G., Haryana, for the State.
Mr.R.K.Malik, Sr.Advocate with Mr.Sangram Malik, Advocate for respondents No.4 to 6, 8 to 13, 15 and 17.
***** AUGUSTINE GEORGE MASIH, J.
(ORAL) Reply on behalf of respondents No.4 to 6, 8 to 13, 15 and 17 filed in Court, taken on record.
Petitioner has approached this Court challenging the selection and appointment of private respondents 5 to 17 on the post of Nursing Sister.
It is the contention of the counsel for the petitioner that an advertisement inviting the applications for various posts including 27 posts Harish Kumar 2014.02.07 11:40 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION No.19831 of 2013 -2- of Nursing Sister was issued by the Director, Health Education and Research, Haryana (respondent No.2).The qualifications prescribed for the said posts were that a candidate should be A-Grade NuRs.with Mid Wifery Training and registered with the Haryana Nursing Registered Council (hereinafter referred to as 'HNRC') or B.Sc.
Nursing (Honour/Post Basic).Further condition was that the candidate would have passed Hindi/Sanskrit upto Matric Standard and five yeaRs.experience as Staff Nurse.
Petitioner applied for the said post being fully eligible.
Interviews were held on 4th and 5th of December, 2012.
The result was declared in the month of January, 2013 and the appointment letters were issued on 1st of February, 2013 to the selected candidates.
Counsel for the petitioner submits that the private respondents are not registered with the HNRC and, therefore, are not eligible for appointment to the post of Nursing Sister.
Prior to issuance of the advertisement, a decision was taken on 08.08.2012 by the Government that for appointment to the post of Staff NuRs.relaxation under the condition of registration with the HNRC would be available for six months after the date of joining of service.
Because of this condition, in the advertisement for the post of Staff Nurse, registration with the HNRC has not been made mandatory.
The same relaxation cannot be stretched and made applicable to the candidates who had applied for the posts of Nursing Sister.
He, therefore, contends that the selection and appointment of the private respondents made is not in consonance with the qualifications prescribed under the advertisement and the same deserves to be set aside.
Harish Kumar 2014.02.07 11:40 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION No.19831 of 2013 -3- In response to this submission made by the counsel for the petitioner, counsel for the State submits that the Government of Haryana had relaxed the rule governing the service condition for the post of Nursing Staff prior to the date of advertisement vide letter dated 08.08.2012 (Annexure R-3/1) qua the post of Staff Nurses.
Thereafter a clarification was issued on 12.12.2012 (Annexure R-3/2) by the State that the words 'Staff Nurses' may be replaced with words 'Nursing Staff'.
On this basis, he contends that relaxation from registration with the HNRC would apply to the case of private respondents as well.
The replacement of the words by letter dated 12.12.2012 would relate back to the initial decision taken by the Government dated 08.08.2013 (Anneuxre R-3/1).This decision would, therefore, apply to the selection and appointment of the private respondents being in consonance with the decision of the Government.
He contends that the writ petition deserves dismissal.
Learned Senior counsel for respondents No.4, 5, 6, 8, 9 to 13, 15 and 17 submits further that respondents No.5 and 10 possessed the requisite qualifications as has been advertised for the post of Nursing Sister.
His submission is that as per the essential qualifications prescribed for a candidate with B.Sc.
Nursing (Honour/Post Basic).requirement of registration with the HNRC is not provided for and it is applicable only to candidates who possess the qualifications of A-Grade NuRs.with Mid Wifery Training.
Since these respondents possess B.Sc.
in Nursing (Honour/Post Basic).their selection is in accordance with the qualifications prescribed in the advertisement.
Qua respondents No.15 and 17, he submits that they are registered with the HNRC prior to the date of Harish Kumar 2014.02.07 11:40 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION No.19831 of 2013 -4- advertisement and, therefore, they fulfilled the mandate of the advertisement.
As regards the other private respondents, learned Senior counsel submits that they are all registered with different Registered Councils of the State.
Referring to Section 11 of the Indian Nursing Council Act, 1947 (hereinafter referred to as '1947 Act').he contends that the remaining private respondents possessed the requisite recognized qualifications by the Indian Nursing Council and are entitled to enrollment in the Indian Nurses Register and in pursuance thereto, they have registered themselves with the respective States.
Adverting to Section 15-A of the 1947 Act, learned Senior counsel states that the register has to be maintained by the Indian Nursing Council of the Nurses, Midwives, Auxiliary NuRs.Midwives and Health Visitor to be known as The Indian Nurses Register which shall contain the names of all persons who are for the time being enrolled on any State Register and it is the responsibility of the Secretary of the Council to keep the Indian Nurses Register according to the provisions of this Act.
It is a document which is admissible under the Indian Evidence Act and, therefore, the registration of the private respondents with the State Council automatically be treated as registered, keeping in view their registration under the Indian Nurses Register which entitles them to practise in any part of the country.
He, on this basis, contends that the requirement for registration with the HNRC cannot be stress upon as a precedent for consideration for appointment to any nursing post.
I have considered the submissions made by the counsel for the Harish Kumar 2014.02.07 11:40 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION No.19831 of 2013 -5- parties and with their able assistance have gone through the records of the case.
The qualifications prescribed for the posts of Nursing Sister as also of the Staff NuRs.are as follows:- Nursing Sister (i) A-grade NuRs.with Mid Wifery Training 9300- (ii) Registered with Haryana Nursing Registered 34800+4800 GP Council or B.Sc.
Nursing (Honour/Post Basic).(iii) Hindi/Sanskrit upto Matric Standard (iv) 5 Years experience as staff NuRs.Staff NuRs.(i) A-Grade NuRs.with Midwifery Training 9300- Registered with Haryana Nursing Council it 34800+200 GP two years from the date of Joining or (ii) Certificate in General Nursing & Midwifery from a recognized institution or equivalent qualification from a institution recognized by the Indian Nursing Council.
Or Any recognized higher qualification (B.Sc/M.Sc (Nursing) (iii) Hindi/Sanskrit upto Matric standard A perusal of the above would show that the requirement for registration with the HNRC is a mandatory condition provided in the statutory rules.
However, in the light of the decision of the Government of Haryana dated 08.08.2012 (Annexure R-3/1) condition of registration with the HNRC for appointment to the post of Staff NuRs.was relaxed to be complied with within a period of six months after the date of joining of the service.
The said decision reads as follows:- “Subject:- Appointment of Staff NuRs.by giving relaxation in condition of registration with HNRC in three new Medical Colleges.
Harish Kumar 2014.02.07 11:40 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION No.19831 of 2013 -6- Reference No.PS/DMER/364, dated 19-06-2012 on the subject notice above.
(2) Government agrees with the proposal of the Department to appoint Staff Nurses in three New Medical Colleges i.e.BPS, GMCW, Khanpur Kalan (Sonipat).SHKM GMC, Nalhar (Mewat) and KCGMC, Karnal by giving relaxation in Service Rules with the condition of registration i.e.Should be registered with HNRC within six months after the date of joining the service.
However, this may be incorporated in the Draft Service Rules.”
.
In view of this specific decision taken by the Government with regard to the Staff Nurses advertisement was issued wherein this condition was not incorporated in the advertisement qua the Staff Nurses.
Interviews were held on 4th and 5th of December, 2012.
It was after the interviews had concluded that another decision was taken by the Government on 12.12.2012 (Annexure R-3/2) wherein the words 'Staff Nurses' was sought to be replaced by the words 'Nursing Staff'.
It was further clarified that this relaxation is meant for all the Nursing Staff i.e.Nursing Superintendents, Deputy Nursing Superintendents, Assistant Nursing Superintendents, Nursing Sisters and Staff Nurses with regard to the condition of registration which has now to be got done with the HNRC within a period of six months from the date of joining of the service.
This decision dated 12.12.2012 (Annexure R-3/2) reads as follows:- “Subject: Appointment of Nursing Staff by giving relexation in condition of registration with HNRC in three New Medical Colleges.
Reference Govt.
memo of even No.dated Harish Kumar 2014.02.07 11:40 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION No.19831 of 2013 -7- 08.08.2012 on the subject notice above.
2.
In the Government letter under reference, the word “Staff Nurses”.
may be replaced with “Nursing Staff”.However, it is further clarified that this relaxation is meant for all the nursing staff i.e.Nursing Supdt., Deputy Nursing Supdt., and Assistant Nursing Supdt, & Nursing Sister and Staff Nurses with the condition of registration of six months with HNRC after the date of joining the service.
However, this may be incorporated in the Draft Service Rules of all three newly Medical Colleges.”
.
The result was declared in the month of January, 2013.
The decision dated 12.12.2012 has been obviously made applicable to the selection process and, therefore, the challenge on the ground that the rules of the game have been changed midway during the process of selection which is not permissible under the law.
The contention of the counsel for the respondents with regard to the condition of relaxation for all the Nursing Staff instead of Staff Nurses alone cannot be accepted for the reason that there is a specific decision taken by the Government qua a particular post i.e.Staff NuRs.on 08.08.2012 and in pursuance thereto, the advertisement was issued on 24.08.2012 (Annexure P-1).In that advertisement, the requirement for registration with the HNRC was not provided for the post of Staff Nurses whereas the said condition finds mention in the qualifications prescribed for the post of Nursing Staff.
This clearly shows the intention of the Government that the decision was only relatable to the posts of Staff NuRs.and not to the Nursing Staff.
In any case, the decision to replace the words 'Staff Nurses' with 'Nursing Staff' has been taken on 12.12.2012 (Annexure Harish Kumar 2014.02.07 11:40 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION No.19831 of 2013 -8- R-3/2) which is even after the date of interviews which were held on 4th and 5th of December, 2012.
The decision if any would be prospective in effect and cannot be said to be retrospective nor it can be made applicable to this selection as the said decision has come into existence on 12.12.2012 i.e.even after the interviews had taken place.
Merely because the term used in the order dated 12.12.2012 is 'replacement of words' that would not mean that a decision had been taken by the Government qua the Nursing Staff on 08.08.2012 and not qua the Staff Nurses alone.
It is by now well settled that the qualifications prescribed in the advertisement and in pursuance thereto when the selection process has been initiated and when even the interviews have been held, the rules of the game cannot be allowed to be changed midway, therefore, the selection of those candidates who do not fulfill the requirement of registration with the HNRC and possess the qualifications of A-Grade Nursing with Mid-Wifery Training cannot be sustained.
As regards respondents 5 and 10, since they are possessing the qualifications of B.Sc.
Nursing (Honour/Post Basic) qua them registration with the HNRC is not a prescribed condition in the advertisement and, therefore, they will have to be treated illegible.
As regards respondents 15 and 17, since they are registered with the HNRC prior to the date of advertisement, their selection and appointments are also required to be upheld.
At this Stage, learned Senior counsel for the remaining private respondents submits that the condition of registration with the HNRC only for appointment to the post advertised is illegal, arbitrary and contrary to the provisions as contained in the 1947 Act.
This contentions of the learned Harish Kumar 2014.02.07 11:40 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION No.19831 of 2013 -9- Senior counsel cannot be accepted as there is no challenge to the same by the persons who would have in any case been aggrieved by the said condition.
The Court is, therefore, not called upon to adjudicate upon this issue.
In view of the above, the present writ petition is partly allowed.
Selection and appointment of private respondents except 5, 10, 15 and 17 is hereby quashed.
Direction is issued to the official respondents to reconsider the claim of all the candidates for appointment to the post of Nursing Sister in view of the above and consider the claim of the petitioner as well on the posts advertised.
This exercise be carried out and concluded by the official respondents with a period of two months.
February 04, 2014 ( AUGUSTINE GEORGE MASIH ) Harish JUDGE Harish Kumar 2014.02.07 11:40 I attest to the accuracy and integrity of this document