Jharkhand High Court
Vijay Lakshmi S vs The State Of Jharkhand Through ... on 13 January, 2022
Author: S.N. Pathak
Bench: S. N. Pathak
1 W.P.(S) No. 1402 of 2021
with
W.P.(S) No. 2626 of 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W. P. (S) No. 1402 of 2021
Vijay Lakshmi S ..... ... Petitioner
Versus
1. The State of Jharkhand through Principal Secretary,
Health, Medical Education and Family Welfare Department, Ranchi.
2. Deputy Secretary, Health, Medical Education
and Family Welfare Department, Ranchi.
3. Jharkhand Nurses Registration Council, Nurses Hostel, Ranchi.
4. Director-in-Chief-cum-Chairman,
Jharkhand Nurses Registration Council, Ranchi.
5. Mrs. Theyamma P.T.
..... ... Respondents
With
W. P. (S) No. 2626 of 2021
Sudhansu Kumari ..... ... Petitioner
Versus
1. The State of Jharkhand through Principal Secretary,
Health, Medical Education and Family Welfare Department, Ranchi.
2. Deputy Secretary, Health, Medical Education
and Family Welfare Department, Ranchi.
3. Jharkhand Nurses Registration Council, Nurses Hostel, Ranchi.
4. Director-in-Chief-cum-Chairman,
Jharkhand Nurses Registration Council, Ranchi.
5. Mrs. Theyamma P.T.
6. Mrs. Vijay Lakshmi S ..... ... Respondents
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CORAM : HON'BLE MR. JUSTICE Dr. S. N. PATHAK
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For the Petitioner : M/s Ajit Kumar, Senior Advocate Aprajita Bhardwaj & Kumari Saugandha, Advs.
Ms. Amrita Sinha, Advocate Ms. Aditya Mohan Khandelwar, Adv.
For the Resp.-State : Mr. Darshana Poddar Mishra, AAG-I Mrs. Om Prakash Tiwari, G.P.-III For the Resp No.3 & 4 : Mr. Kumar Vaibhav, Advocate For the Resp No.5 : M/s Anil Kumar Sinha, Sr. Advocate, Saurav Arun & Abhay Prakash, Advocates
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CAV ON : 08.12.2021 PRONOUNCEMENT ON : 13.01.2022 1. Heard the parties.
2. Since common prayer has been made in both these writ petitions and as such, they have been heard together and are being disposed of by this common order.
3. In both these writ petitions, the petitioners pray for quashing of Advertisement No. 01/2021 (revised) issued under the signature of respondent 2 W.P.(S) No. 1402 of 2021 with W.P.(S) No. 2626 of 2021 no. 4 for the post of Registrar of the Council, as the same is not in consonance with Rule 3 of the Bihar Nurses Registration Council and is in teeth of the judgment rendered by this Court in W.P.(S) No. 2587 of 2020. Further prayer has been made to quash and set aside the order No. 129/JNRC/2021-205 dated 27.5.2021, by which respondent no.5 has been appointed on the post of Registrar, Jharkhand Nurses Registration Council. Factual Matrix of W.P.(S) No. 1402 of 2021
4. Sans the unnecessary details, the relevant facts of the case are that on 15.1.1990, petitioner (Vijay Lakshi S) was appointed as Staff Nurse in Rajendra Medical College and Hospital (RIMS), Ranchi. The petitioner was selected for Basic B.Sc. Nursing Course for which Government authority accorded her the permission to pursue the said course for the year 2008-11. The petitioner worked as Clinical Instructor at RIMS in the year 2010-13. Thereafter, she was appointed as Nursing Superintendent at RIMS, Ranchi on 28.8.2014. In course of time, the petitioner was promoted as Sister Tutor on 19.9.2016 and transferred to Sadar Hospital. At present the petitioner is officiating as Principal-in-Charge, Auxiliary Nurses Midwife Training School, Sadar Hospital, Ranchi. On 12.2.2020, the Director-in-Chief, Health Services, Jharkhand issued a seniority list of Sister Tutor, wherein, the name of petitioner appears at serial no. 10 and that of private respondent no.5 at serial no. 13.
Factual Matrix of W.P.(S) No. 2626 of 2021
5. The petitioner did her General Nursing & Midwifery Course from Nalanda Medical College & Hospital, Patna in the year 1987-88. She was appointed on 4.10.1989 as Staff Nurse at Referral Hospital, Jahanabad. Thereafter, she was transferred to Mahatma Gandhi Medical College and Hospital, Jamshedpur on 12.8.1992 and after bifurcation of existing State of Bihar, the service of this petitioner was allocated to the State of Jharkhand. In course of service, the petitioner completed her Diploma in Nursing Education & Administration (DNEA). By order contained in Memo No. 296 dated 29.9.2003, the petitioner was deputed on the post of Sister Tutor at Mahatma Gandhi Medical College & Hospital, Jamshedpur. Thereafter the petitioner completed the course of B.Sc (Post Basic) in Nursing. Vide memo no. 2210 dated 4.9.2012, the petitioner was posted at General Nursing & Midwifery Training School, Jamshedpur. The petitioner worked on the post of Sister 3 W.P.(S) No. 1402 of 2021 with W.P.(S) No. 2626 of 2021 Tutor from the year 2003 to 2016. Thereafter, the petitioner was promoted on regular post of Sister Tutor and was posted at Auxiliary Nurse Midwifery Training Centre, Chaibasa. At present, the petitioner is working on the post of Sister Tutor and has a teaching experience of 18 years. In the seniority list of Sister Tutor, name of petitioner appears at serial no. 9.
6. Petitioner (Vijay Lakshi S) has earlier filed W.P.(S) No. 2587 of 2020 for consideration of her candidature for appointment to the post of Registrar-cum-Secretary of the Jharkhand Nurses Registration Council, and for quashment of the order, whereby private respondent was given additional charge of the said post. This Court by order dated 23.2.2021 disposed of the said writ petition directing the official respondent nos. 1 to 3 to fill up the post of Registrar by publishing a fresh advertisement in terms of Clause 3 of the said Regulation and complete the entire selection process within a period of eight weeks. This Court also observed that if the post is not filled up within the stipulated period, the private respondent no.6 shall not continue on the post of Registrar.
7. Thereafter the respondent-authorities issued Advertisement No. 01/2021 on 8.3.2021, which was subsequently recalled and a revised advertisement on 22.3.2021 (Annexure-9) was published. It is the specific case of the petitioner that clause 11 of the revised advertisement is not in consonance with the conditions of the said Regulation, as the maximum age for appointment has been prescribed as 60 years. It is further case of the petitioner that the respondent authorities proceeded further and issued office order dated 27.5.2021, appointing respondent no. 5 (Theyamma P.T.) to the post of Registrar of the Council, despite the fact that advertisement itself was contrary to Clause 3 of the Bihar Nurses Registration Council (Appointment and Administration of Registrar) Regulation, which was adopted by the State of Jharkhand vide notification no. 640(1) dated 25.10.2002. Aggrieved thereby, the petitioners have approached this Court. Argument of petitioners
8. Mr. Ajit Kumar, learned senior counsel, assisted by Ms. Aprajita Bhardwaj, advocate, appearing on behalf of petitioner Vijay Lakshmi S and Ms. Amrita Sinha, learned counsel appearing for petitioner Sudhansu Kumari submit that the respondent no.5 does not have the requisite qualification as laid down in Clause 3 of the said Regulation on various grounds i.e. 4 W.P.(S) No. 1402 of 2021 with W.P.(S) No. 2626 of 2021 respondent no. 5 has crossed the age of 58 years on 10.5.2020 which has been settled by the order passed by this Court in W.P.(S) No. 2587 of 2020 and the same has attained finality as the respondent No.5 has not challenged the same; respondent no.5 was not having the minimum experience of 10 years of teaching experience in Government Nursing School in a recognised Nursing Institution; the respondent no.5 has never been posted as a Sister Tutor or even promoted at any given time, which would be evident from the report of three-man committee submitted to the Director-in-Chief, Health Services, Jharkhand by letter no. 274(D) dated 3.11.2020 (Annexure-11). Learned senior counsel further submits that the appointment of respondent no.5 is in teeth of the said Regulation. Clause 3 thereof relates to eligibility criteria for appointment to the post of the Registrar of Jharkhand Nurses Registration Council and the Registrar is ordinarily required to hold the office for a period of three years but not beyond the age of 58 years. Learned senior counsel further submits that there is no document on record to suggest that the maximum age or the age of retirement has been enhanced to 60 years and hence, prescribing maximum age of 60 years for appointment on the post of Registrar as per Clause 11 of the advertisement is contrary to Clause 3 of the said Regulation. Learned counsel submits that as per Clause 4 of the advertisement, a candidate, having higher qualification and experience, was to be given the weightage / preference. The petitioners having the higher qualification and experience than the respondent no.5, ought to have been considered.
9. Learned senior counsel further demonstrates the fact with respect to the respondent no.5 that in view of the dispute cropped up between the petitioners and the respondent no.5, a three man committee submitted their report. The report states that respondent no.5 joined the post in the year 2000 and the confirmation of her service has not been made as yet. The enquiry report further states that the experience of respondent no.5 is doubtful, as she has never been promoted to the post of Sister Tutor.
10. To buttress their arguments, learned counsels place heavy reliance upon the decisions in the case of Mehsana Distt. Central Co.op.Bank Ltd. Vs. State of Gujarat, reported in (2004) 2 SCC 463, wherein, the Hon'ble Apex Court held that when there is any allegation of violation of statutory rules, which have been brought on the notice of the 5 W.P.(S) No. 1402 of 2021 with W.P.(S) No. 2626 of 2021 authorities and if authorities concerned do not perform their statutory obligation, any aggrieved citizen can always bring to the notice of the High Court the inaction of the authorities. Further to strengthen their arguments and to justify their stand, learned counsel relies on the judgement of the Hon'ble Apex Court in the case of B.R. Kapoor Vs. State of T.N., reported in 2002 (1) JCR 180. Learned senior counsel also places reliance upon the decisions in the cases of The Municipal Corporation Bhopal, M.P. Vs. Misbahul Hasan & Ors, reported in (1972) 1 SCC 696 and Ramakrishna Vivekananda Mission Vs. State of W.B. & Others, reported in (2005) 9 SCC 53. Arguments advanced by private respondent No.5.
11. Learned counsel appearing for respondent no.5, at the very outset, submits that the petitioners have no locus standi to challenge the selection process in question, inasmuch as, when the petitioners having taken part in the selection process could not be permitted to challenge the same after they were declared unsuccessful. The law is well settled that once a person takes part in the process of selection and is not found fit for appointment, the said person is estopped from challenging the process of selection. Learned senior counsel demonstrates the fact that initially the petitioner of W.P.(S) 1402 of 2021 challenged the advertisement alleging that the same was not in consonance with Rule 3 of the said Regulationa and thereafter, the respondent authorities amended the said advertisement and a revised advertisement was issued. The petitioners duly participated in the selection process and when they became unsuccessful, they challenged the selection procedure. Learned senior counsel further adds that after considering the advertisement issued by the Indian Nursing Council, as also by the Bihar Nurses Registration Council for the post of Registrar, the respondent authorities published the revised advertisement on 22.3.2021 and after considering the Resolution No. 5826 dated 26.10.2004 issued by the Personnel, Administrative Reforms and Rajbhasha Department, Govt. of Jharkhand, the maximum age was fixed, which is also applicable to the employees of Jharkhand Nurses Registration Council. Further learned senior counsel submits that after considering the suitability of the candidates as per Regulation, respondent no.5 was appointed. The observation made by this Court in earlier round of litigation in W.P.(S) No. 2587 of 2020 was fully adhered to in the selection process.
6 W.P.(S) No. 1402 of 2021with W.P.(S) No. 2626 of 2021
12. As regards the educational qualification and experience of respondent no.5, learned senior counsel states that she joined as 'A' Grade Nurse in RIMS on 12.5.2000. By the order of Director, RIMS vide Memo No. 987 dated 22.2.2020, she was engaged in teaching work and thereafter posted as Public Health Nurse, vide memo no. 895 dated 28.3.2011. In the seniority list, her name stands at serial no. 13. She obtained B.Sc (Nursing) degree in June 2010 and Master of Science (Nursing) in 2014 after grant of leave with pay. She was made in-charge Principal, Nurses School of RIMS vide memo no. 4491 dated 29.6.2017. Thereafter, she joined as Incharge Registrar, Jharkhand Nurses Registration Council, Ranchi vide memo no. 236(10) dated 24.8.2017. After her selection and appointment vide Memo No. 205 dated 27.5.2021, respondent No.5 joined on the post of Registrar, Jharkhand Nurses Registration Council, which is under challenge.
13. Learned senior counsel lastly submits that prayer for issuance of writ in the nature of quo warranto declaring that the appointment of respondent no.5 is illegal as she does not have the requisite qualification and overaged, is baseless, incorrect and does not deserve any consideration by this Court.
14. In support of his argument, learned counsel places reliance upon the decision of the cases of Union of India & Anr. Vs. Hemraj Singh Chauhan & Ors., reported in (2010) 4 SCC 290, Commissioner of Customs, Mumbai Vs. J.D. Orgochem Limited, reported in (2008) 16 SCC 576, Rajasthan State Industrial Development and Investment Corporation & Another Vs. Diamond & GEM Development Corporation Limited & Anr., reported in (2013) 5 SCC 470, D. Saroja Kumari Vs. R. Helen Thilakom & Ors., reported in (2017) 9 SCC 478, Pradeep Kumar Rai & Ors Vs. Dinesh Kumar Pandey & Ors., reported in (2015) 11 SCC 493, Dr. L.P. Agarwal Vs. Union of India & Ors, reported in (1992) 3 SCC 526 and Subodh Kumar & Ors. Vs. Commissioner of Police & Ors., reported in (2020) 13 SCC 201. Argument advanced by State.
15. Mrs. Darshana Poddar Mishra, learned Addl. Advocate General, representing the State, vehemently opposes the contention of Mr. Ajit Kumar, learned senior counsel and Ms. Amrita Sinha, learned counsel appearing for the petitioners, and submits that pursuant to the direction of this Court in W.P.(S) No. 2587 of 2020, the respondent-Council published the 7 W.P.(S) No. 1402 of 2021 with W.P.(S) No. 2626 of 2021 Advertisement No. 01/2021 for the post of Registrar, though the same was revised, strictly in terms of Bihar and Orissa Nurses Registration Act, 1935, adopted by the State of Jharkhand by Notification dated 25.10.2002. Considering the Notification No. 5825 dated 6.10.2004 whereby the age of State Government employees was enhanced to 60 years, which is also applicable to the employees of Jharkhand Nurses Registration Council, the respondent no.3 in its meeting dated 2.3.2021, decided to enhance the age to 60 for the post of Registrar. In terms of amended advertisement, walk-in- interview was conducted by the Council, in which, the petitioners and private respondent no.5 participated. The Selection Committee after evaluating the performance of the candidates based on merit-cum-experience, prepare a tabular chart, in which, respondent no.5 (Mrs. Theyamma P.T.) was found to have the highest educational qualification and experience as required and thereafter, her name was recommended to the Government. Learned counsel submits that the respondent no.3 had acted in conformity with the Rules / Regulations in recommending the name of respondent no.5 for the post of Registrar. Learned counsel lastly submits that once the petitioners participated in the selection process and were fully aware about the selection conditions, cannot be permitted to raise objections to selection process and hence, the writ petitions deserve to be dismissed.
Argument advanced by Respondent Nos. 3 & 4 (Council)
16. Mr. Kumar Vaibhav, learned counsel representing the respondent Nos. 3 and 4 supporting the contention of the State as well as that of respondent no.5 argues that it is not open for the petitioners to challenge the Advertisement No. 01/2021, as the petitioners fully participated in the selection process pursuant to the said advertisement and after they were declared unsuccessful, have rushed to the Court challenging the same. Further it has been argued that the observation of the Court in W.P.(S) No. 2587 of 2020 dated 23.2.2011, must be read in its factual context and ratio decidendi but obiter dicta. Further it has been argued that the issue involved in both these writ petitions was never the issue in W.P.(S) No. 2587 of 2020 as the same was filed inter alia for quashing the order dated 24.8.2017 giving additional charge of Registrar to the respondent (Mrs. Theyamma P.T.) therein and the Regulation was never interpreted by the Court. It was further argued that appointment to the post of Registrar is to be made considering the 8 W.P.(S) No. 1402 of 2021 with W.P.(S) No. 2626 of 2021 existing age of retirement in force. As on date of appointment of respondent no.5 as Registrar, the age of retirement in the State of Jharkhand was 60 years and not 58 years. Supporting the contention of the State, learned counsel Mr. Kumar Vaibhav lastly argues that after due deliberation in the meeting of the Council, the respondent no.5 was selected as per the terms and conditions of the advertisement which clearly stipulates that higher qualification will be given preference and admittedly the respondent no.5 had the highest qualification of M.Sc Nursing and also requisite experience and as such, she has been selected. Learned counsel places heavy reliance on the judgment of the Hon'ble Apex Court in the cases of UCO Bank Vs. Rajinder Lal Capoor, reported in (2009) 5 SCC 257, Union of India Vs. Hemraj Singh Chauhan (supra), R.S.I.D.I.C. Vs. Diamond & Gem Development Corporation (supra), Subodh Kumar Vs. Commissioner of Police (supra) and M.P.S.C. Vs. Sandeep Shriram Warade reported in (2019) 6 SCC 363. Findings of the Court
17. Having heard the rival submissions of the parties and after going through the records, it appears that the main grievances of the petitioners are that clause 11 of the revised advertisement dated 22.3.2021 (Annexure-9) is contrary to the provisions enshrined in clause 3 of the Bihar Nurses Registration Council (Appointment and Condition of Service of Registrar) Regulation, which was framed under the provision of section 8(1) of the Bihar Nurses Registration Act, 1935, and the appointment of private respondent no.5 on the post of Registrar is illegal, as she does not possesses the requisite qualification and experience. But, before delving deep into the merits of the case, it would be apposite to examine the locus of the petitioners as to whether after fully participating in the selection process, they could have challenged the entire selection process as well as the advertisement or not. The similar issue fell for consideration in the case of D. Saroja Kumari (supra), wherein the Hon'ble Apex Court, observed as follows:-
"The law is well settled that once a person takes part in the process of selection and is not found fit for appointment, the said person is estopped from challenging the process of selection."
18. In the case of G. Sarana Vs. University of Lucknow, reported in (1976) 3 SCC 585, the petitioner after appearing in the interview for the post of Professor and having not been selected, pleaded that the experts were 9 W.P.(S) No. 1402 of 2021 with W.P.(S) No. 2626 of 2021 biased. The Hon'ble Apex Court did not permit the petitioner to raise this issue and held as follows:-
"15. We do not, however, consider it necessary in the present case to go into the question of the reasonableness of bias or real likelihood of bias as despite the fact that the appellant knew all the relevant facts, he did not before appearing for the interview or at the time of the interview raise even his little finger against the constitution of the Selection Committee. He seems to have voluntarily appeared before the committee and taken a chance of having a favourable recommendation from it. Having done so, it is not now open to him to turn round and question the constitution of the committee."
19. In Madan Lal Vs. State of J & K, reported in (1995) 3 SCC 486, the petitioner laid challenge to the manner and method of conducting viva voce test after they had appeared in the same and were unsuccessful. The Hon'ble Apex Court in para-9 held as under:-
"9. ... Thus the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed this petition. It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted."
20. In Manish Kumar Shahi Vs. State of Bihar, reported in (2010) 12 SCC 576 : (2011) 1 SCC (L&S) 256, the Hon'ble Apex Court in para-16, held as under:-
"16. ... Surely, if the petitioner's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The petitioner invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the petitioner clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition."
21. In the case of Ramesh Chandra Shah Vs. Anil Joshi, reported in (2013) 11 SCC 309, where the petitioners took part in the process of selection made under the general rules. Having appeared in the interview and not being successful they challenged the method of recruitment itself. They 10 W.P.(S) No. 1402 of 2021 with W.P.(S) No. 2626 of 2021 were not permitted to raise such an objection. The Hon'ble Supreme Court held in para-24 as follows:-
"24. In view of the propositions laid down in the abovenoted judgments, it must be held that by having taken part in the process of selection with full knowledge that the recruitment was being made under the General Rules, the respondents had waived their right to question the advertisement or methodology adopted by the Board for making selection and the learned Single Judge8 and the Division Bench9 of the High Court committed grave error by entertaining the grievance made by the respondents."
22. The same view was reiterated in the case of Madras Institute of Development Studieis Vs. K. Sivasubramaniyan, reported in (2016) 1 SCC
454.
23. In Pradeep Kumar Rai & Ors. Vs. Dinesh Kumar Pandey & Others, reported in (2015) 11 SCC 493, where the appellants had participated in the process of interview and not challenged it till the results were declared. Only when they declared unsuccessful, they challenged the same, which cannot be allowed. The Hon'ble Apex Court observed in para- 17 as follows:-
"17. Moreover, we would concur with the Division Bench on one more point that the appellants had participated in the process of interview and not challenged it till the results were declared. There was a gap of almost four months between the interview and declaration of result. However, the appellants had not challenge it at that time. Thus, it appears that only when the appellants found themselves to be unsuccessful, they challenged the interview. This cannot be allowed. The candidates cannot approbate and reprobate at the same time. Either the candidates should not have participated in the interview and challenged the procedure or they should have participated in the interview and challenged the procedure or they should have challenged immediately after the interviews were conducted."
24. Admittedly, petitioners had participated in the selection process having fully aware of the terms and conditions as envisaged in the advertisement. It was only after being declared unsuccessful, the rules are being interpreted in their own way. Such candidates cannot be permitted to challenge the selection process/procedure and they are stopped from doing so. Such writ petition is to be dismissed in limni as not maintainable, in view of the aforesaid judicial pronouncements of the Hon'ble Supreme Court.
11 W.P.(S) No. 1402 of 2021with W.P.(S) No. 2626 of 2021
25. The contention of the learned senior counsel appearing for the petitioners is that clause 11 of the revised advertisement dated 22.3.2021 (Annexure-9) is contrary to the provisions enshrined in clause 3 of the said Regulation. Clause 3 of the said Regulation stipulates the definition of eligibility and registration of the post of Registrar, which reads as under:-
"3. There shall be a Registrar of the Council appointed by the Council under Section 7 of the Act.
Eligibility and Qualification of the Register
(i) Shall be an Indian Citizen
(ii) Shall have passed Secondary School Examination or its equivalent
(iii) Shall be a Registered Nurse/Registered Midwife, due weightage will be given as per Government of Bihar reservation criteria.
(iv) Shall have a minimum of 10 years experience in teaching in a Government Nursing School in a recognised Nursing Institution/School Academy by whatever name called or administration in Nursing in Government Hospital or an Institution recognised for the purpose by Government have at least a Diploma in Nursing Administration of Nursing education or P.H.N. qualification.
(v) Age shall be minimum of 35 years or above.
(vi) The Registrar shall be paid salary at par the salary of senior matrons Senior Tutor/Principal Tutor/Senior PHN/Bihar Services.
(vii) Shall have no adverse remarks in Annual confidential report.
The post of Registrar shall be filled up by advertisement or invitation as the Director-in-Chief may direct for that purpose. If it is decided to appoint by advertisement, the Council shall invite applications by open advertisement in two newspapers published in Bihar. Any person in Government service imparting teaching or administrative job nurse may apply for the post of Registrar. Application Form from such persons who are employed as above should be accompanied by a "No Objection Certification from the head of the Department or the Appointing Authority as the case may be.
The Registrar shall ordinarily hold office for three years which may be extended for a further term of three years but not beyond the age of 58 years.
The Government may recall its employee at any time for administrative reasons and the service of the Registrar will in that case automatically be terminated.
Except as stated above, the Bihar Services (Discipline and Appeal) Rules, 1935, the Bihar Government Conduct Rules, the Bihar Board's Miscellaneous Rules and the Bihar Service Code shall mutatis mutandis apply to the case of the Registrar as if they form part of this Regulation.
There shall be a Selection Committee consisting of the President and the entire Council members for appointment and 12 W.P.(S) No. 1402 of 2021 with W.P.(S) No. 2626 of 2021 recommendation to the Council for such appointment any person found fit for the same.
In the event of the post being vacant, it shall be open to the Director-in-Chief to make temporary arrangement until a Registrar is duly appointed."
26. Clause 11 of the revised advertisement no. 01/2021 reads as under:-
"11. Chayanit Umeedvar ko tin varsh ki kalawadi ke liye niyukta kiya jayega, jise agle tin varshon ki kalawadi ke liye awakshyanusar vistarit kiya ja sakta hai nekin 60 varsh aayu prapta karne wale par yah lagu nahi hoga."
27. From bare perusal of the said Regulation, it appears that clause 3(v) prescribes a minimum age limit of 35 years and not prescribes a maximum age limit. Regulation 3 states that the Registrar shall 'ordinarily' hold office for three years which may be extended for a further term of three years but not beyond the age of 58 years. Use of word 'ordinary' connotes that this portion of the Regulation is directory and not mandatory. Regulation 3 itself contains an exception by stating that except for provided matters, the Service Code shall mutatis mutandis apply to the case of the Registrar. At the time when Bihar Nurses Registration Council (Appointment and Administration of Registrar) Regulation was adopted by the State of Jharkhand by Notification No. 640 (1) dated 25.10.2002, the age of retirement of the State Government employees was 58 years, but later on, by notification dated 26.10.2004, the age of retirement has been enhanced from 58 years to 60 years. State Government has also taken a stand that the said resolution dated 26.10.2004 enhancing the age of retirement is applicable to the Jharkhand Nurses Registration Council also. In this context, the Hon'ble Supreme Court in the case of UCO Bank Vs. Rajinder Lal Capoor (supra) held in para-28 as follows:-
"All the regulations must be given a harmonious interpretation. A court of law should not presume a casus omissus but if there is any, it shall not supply the same. If two or more provisions of a statute appear to carry different meanings, a construction which would give effect to all of them should be preferred."
28. As regards the contention of learned senior counsel appearing for the petitioners that there is no document on record to suggest that the maximum age or the age of retirement has been enhanced to 60 years, is not 13 W.P.(S) No. 1402 of 2021 with W.P.(S) No. 2626 of 2021 tenable in the facts of the case. Though there was observation of the Court in earlier writ petition, being W.P.(S) No. 2587 of 2020, that "there is no document on record to suggest that age of 58 years has been enhanced to 60 years so far as the appointment of Registrar of Council is concerned", but unfortunately at that point of time, the resolution of the State Government dated 26.10.2004 enhancing the age of retirement from 58 years to 60 years, was not brought on record to the notice of this Court. Considering the existing age of retirement in force, the appointment of Registrar has been made. Therefore, the contention of Mr. Ajit Kumar, learned senior counsel, as also Ms. Amrita Sinha, learned counsel, appearing for the petitioners in both these writ petitions regarding the age of retirement of Registrar to 58 years is not acceptable to this Court, as after coming into force the resolution of the State Government dated 26.10.2004, which is also applicable to the employees of Jharkhand Nurses Registration Council, the age of retirement has been enhanced from 58 years to 60 years. In this context, the Hon'ble Supreme Court in the case of Subodh Kumar Vs. Commissioner of Police (supra), held as under:-
"It is equally a settled proposition of law that a candidate has a right to be considered under the existing rules, which implies the "rule in force" on the date the consideration took place...."
29. Further, the Hon'ble Apex Court in the case of M.P.S.C. V. Sandeep Shariman Warade (supra) held as under:-
"9. The essential qualifications for appointment to a post are for the employer to decide. The employer may prescribe additional or desirable qualifications, including any grant of preference. It is the employer who is best suited to decide the requirements a candidate must possess according to the needs of the employer and the nature of work. The court cannot lay down the conditions of eligibility, much less can it delve into the issue with regard to desirable qualifications being on a par with the essential eligibility by an interpretive re-writing of the advertisement. Questions of equivalence will also fall outside the domain of judicial review. If the language of the advertisement and the rules are clear, the court cannot sit in judgment over the same. If there is an ambiguity in the advertisement or it is contrary to any rules or law the matter has to go back to the appointing authority after appropriate orders, to proceed in accordance with law. In no case can the court, in the garb of judicial review, sit in the chair of the appointing authority to decide what is best for the employer 14 W.P.(S) No. 1402 of 2021 with W.P.(S) No. 2626 of 2021 and interpret the conditions of the advertisement contrary to the plain language of the same."
30. It is well settled that where an executive action of the State is challenged, the Court must tread with caution and not overstep its limits. The interference by the Court is warranted only when there are oblique motives or there is miscarriage of justice. In the instant case, neither there is any oblique motive nor there any miscarriage of justice warranting interference by this Court. The selection process carried out by Jharkhand Nurses Registration Council was in accordance with law and after due deliberations in the meetings of the Council, respondent No.5 (Mrs. Theyamma P.T.) was selected as per the terms and conditions of the advertisement after giving preference of higher qualification and experience, which does not attract any interference.
31. As a sequitur to the aforesaid observations, rules, guidelines, legal propositions and judicial pronouncements, this Court is of the view that both these writ petitions does not warrant any interference and the same are fit to be dismissed.
32. Resultantly, both these writ petitions stand dismissed. No order as to costs.
(Dr. S.N. Pathak, J.) R.Kr.