Orissa High Court
Renuka Dash vs State Of Orissa And Ors. on 21 June, 2002
Equivalent citations: 2002(II)OLR279
Author: A.K. Patnaik
Bench: A.K. Patnaik, M. Papanna
JUDGMENT A.K. Patnaik, J.
1. By an admission notice published on 23.5.2001 the Principal, College of Nursing; Berhampur invited applications in the prescribed form from the inservice Nursing Personnel working under the Health and Family Welfare Department of the State for selection and admission into Post Certificate B. Sc. Nursing course at the College of Nursing. Berhampur. In the said admission notice, it was, inter alia, stipulated that to be eligible for applying for two years Post Certificate B.Sc. Nursing, a candidate must have passed intermediate/+2 Examination or equivalent examination. Pursuant to the said admission notice, the petitioner submitted an application on 6.6.2001 in the prescribed form. Against column No. 18 of the prescribed application form which relates to particulars of academic qualification of the candidate, the petitioner indicated therein that she had passed High School Certificate Examination conducted by the Board of Secondary Education, Orissa and obtained B.A. Degree from the Indira Gandhi Open University, New Delhi. Since she was not selected and admitted into the Post Certificate B.Sc. Nursing course for the academic session 2001-2002, she has filed this writ petition for a direction to the opp. party No. 3 to select and admit her into the said Nursing course.
2. A counter affidavit has been filed, on behalf of the opp. parties and in paragraph-6 of the said affidavit of the opp. parties, it has been stated that the Government of Orissa in the Health and Family Welfare Department in its letter No. 40309 dated 25.11.1987 has indicated to the Director of Medical Education and Training, Orissa, the procedure to be followed in the matter of selection of candidates into Post Certificate B.Sc. Nursing course during the academic session 1986-1987 and as per the said procedure, 1/10th percentage of the marks secured in the Intermediate examination or equivalent examination is awarded. In Paragraph-7 of the said counter affidavit, it has been further stated that there has been no change till date in the said procedure for awarding marks introduced during the academic session 1986-87 except some partial modifications with regard to reservation of seats. In the said paragraph-7, a plea has been taken that although the petitioner was an applicant, in order to enable the authorities to award marks in the manner laid down in the letter No. 40309 dated 25.11.1987 of the Government of Orissa in the Health and Family Welfare Department, the petitioner did not furnish all the supporting documents. It has been further stated in paragraph-8 of the counter affidavit that though the application of the petitioner was processed and it was placed before the Selection Board meeting held on 10.7.2001 under the Chairmanship of opp. party No. 4, the same was rejected for the petitioner having not passed the qualifying examination, i.e., Intermediate or +2 or any equivalent examination as stipulated in the guidelines and the advertisement.
3. Mr. U. C. Mohanty, learned counsel for the petitioner submitted that the prospectus of the Indira Gandhi National Open University, copy of which has been annexed to the rejoinder affidavit of the petitioner as Annexure-10, would show that entry to Bachelor's Degree Programmes to the said University is through two means : the non-formal and the formal. The non-formal is through Bachelor's Preparatory Programme (B.P.P.) conducted by the Indira Gandhi National Open University and the formal is after passing 10+2 or its equivalent. He explained that since the petitioner had not passed 10+2 or its equivalent, she went through the Bachelor's Preparatory Programme and thereafter was admitted in the Bachelor's Degree Programme (B.D.P.) of the Indira Gandhi National Open University and only thereafter given the Bachelor Degree. He also referred to the said prospectus to show that the degrees of Indira Gandhi National Open University are recognised by all the members of the Association of Indian Universities and are at par with such degrees of all Indian Universities vide U.G.C. Circular No. F. 1-8/ 92 (CPP) dated February, 1992. Mr. Mohanty further submitted that, in fact, the Bachelor Degree granted by the Indira Gandhi National Open University to the petitioner has been recognised by the Sambalpur University and the Sambalpur University has allowed the petitioner to take the M.A. Part-I Examination. The mark list of the M.A. (English) Part-I Examination of the petitioner has been annexed to the writ petition as Annexure-5. According to Mr. Mohanty, the non-consideration of the application of the petitioner for the Post Certificate B.Sc. Nursing course by the opposite parties on the ground that she did not have an Intermediate Degree or equivalent is wholly arbitrary and violative of the rights of the petitioner under Article 14 of the Constitution.
4. Mr. D. K. Nanda, learned Additional Government Advocate, on the other hand, submitted that it will be clear from the averments in the counter affidavit filed on behalf of the opp. parties that 1/10th percentage of the marks secured in the Intermediate examination or equivalent examination by the candidate is to be taken into consideration while selecting the candidates for admission to the said Nursing course and since the petitioner had not admittedly taken the Intermediate examination or equivalent examination, her marks in the said examination were not available before the authorities for considering her case for selection to the Nursing, course. He further submitted that it will appear from the counter affidavit that the selection Board in its meeting held on 10.7.2001 also rejected the applications of the petitioner as she had not passed the qualifying examination, i.e., Intermediate/+2 equivalent examination as stipulated in the advertisement. According to Mr. Nanda, therefore, the authorities have acted in accordance with the advertisement as well as the procedure laid down by the Government in Letter No. 40309 dated 25.11.1987.
5. The authorities making the selection for admission to Nursing course have to be fair and reasonable in their approach and any rejection of an application of a candidate by the authorities on grounds which are not fair and reasonable will obviously violate Article 14 of the Constitution. In the instant case, therefore, the question that has to be decided is whether the approach of the authorities in not considering or in rejecting the application of the petitioner for the Nursing course has been fair and reasonable or has been arbitrary violating the provisions of Article 14 of the Constitution.
6. The advertisement indicates that to be eligible to apply for two years Post Certificate B.Sc. Nursing course, a candidate must have passed Intermediate/+2 or equivalent examination. This eligibility condition in the advertisement lays down only the minimum qualification that a candidate must have passed Intermediate/+2 examination or equivalent examination for applying two years Post Certificate B.Sc. Nursing. We are, therefore, of the opinion that since the petitioner has a higher qualification than that of Intermediate/+2 examination or equivalent examination, obviously, her case cannot be thrown out by the authorities on the ground that she did not have the minimum qualification for being eligible to apply or the two years Post Certificate B. Sc. Nursing course. In the instant case, it is true that the petitioner did not have Intermediate/+2 examination or equivalent examination certificate. But, then, the petitioner had a Bachelor's Degree from the Indira Gandhi National Open University and the said Bachelor's Degree is recognised by all the members of the Association of the Indian Universities. As a matter of fact, the petitioner's Bachelor's Degree granted by the Indira Gandhi National Open University also appears to have been recognised by the Sambalpur University and the Sambalpur University has allowed the petitioner to sit for the M.A. Part-I Examination. The Indira Gandhi National Open University is an University established under the Indira Gandhi National Open University Act, 1985 enacted by the Parliament which has, inter alia, the objects of strengthening and diversifying the degree, certificate and diploma courses related to the needs of employment and necessary for building the economy of the country on the basis of its natural and human resources and to provide access to higher education for large segments of the population, and in particular, the disadvantaged groups such as those living in remote and rural areas including working people, house-wives and other adults who wish to upgrade or acquire knowledge through studies in various fields. The Indira Gandhi National Open University, as it appears from the prospectus annexed to the rejoinder, has taken into consideration the fact that there may be candidates wanting to pursue the Bachelor's Degree Programme of the University but are not able to pursue the same as they had not completed 10 + 2 or its equivalent examination. For this reason, they have formulated their own Bachelor's Preparatory Programme (B.P.P.) so as to prepare these candidates without the formal 10 + 2 certificate for the Bachelor's Degree Programme. The relevant portion of the prospectus of the Indira Gandhi National Open University relating to the Bachelor's Preparatory Programme (B.P.P.) and Bachelor's Degree Programme (B.D.P.) is extracted here in below :
"2. xx xx 2.1. Bachelor's Degree Programmes Entry to Bachelor's Degree Programme is through two means : the non-formal and the formal. The non-formal is through BPP and the formal is after passing 10 + 2 or its equivalent.
Bachelor's Preparatory Programme (BPP) Learners who are admitted to the B.P.P. must opt for two of the following three courses. After six months there is a qualifying examination by which time the learner should have submitted his/her assignments as well.
(a) Preparatory Course in General Mathematics (Compulsory for all)
(b) Preparatory Course in Social Sciences (those wishing to go for BA) OR Preparatory Course in Commerce (those wishing to go for BCom) Those who do not have the formal educational qualification of 10 + 2 but have attained the age of 18 years or more on 1st January/1st July of the academic year can apply for admission to the Bachelor's Preparatory Programme (BPP) To get admitted to BDP, they should clear the qualifying test held in July and September. After going through BPP. these candidates may join the BA/BCom. Programme, if they so desire.
Both BPP and BA/BCom. Programmes are available in English as well as Hindi. The choice of the medium of instruction is left to learner.
2.1.1. Bachelor's Degree Programme (BDP).
(a) B.A., B.Com., Programme for 10 + 2 and BPP promotees, and
(b) B.Sc. Programme for 10 + 2 with Science subjects. The University offers a Bachelor's Degree Programme leading to a BA/BCom/BSc Degree. A minimum period of three years is required for completing the Bachelor's Degree Programme. However, if the learner wants a maximum of 8 years is allowed. The University follows the credit system in organising this programme. Credit weightage is given against each course. A learner will be eligible to get a BA/Bcom/BSc Degree when (s) he earns 96 credits as given under.
XX XX XX"
It will be clear from the aforesaid extracts that those candidates who do not have formal educational qualification of 10 + 2, are made to go through Bachelor's Preparatory Programme (B.P.P.) and after going through the Bachelor's Preparatory Programme, they are allowed to join the B.A. Programme of the Indira Gandhi" National Open University, It is not that without a reason this arrangement has been made by the authorities of the Indira Gandhi National Open University for allowing also the candidates who have not gone through the formal 10 + 2 or its equivalents course to go through a Bachelor's Preparatory Programme and then, take the Bachelor's Degree Programme (B.D.P.) of the said University. Since the petitioner has got the Bachelor's Degree from the Indira Gandhi National Open University after going through the Bachelor's Preparatory Programme (B.P.P.) of the said University, in our considered opinion, the petitioner had the minimum qualification for applying for the Post Certificate B.Sc. Nursing course as stipulated in the advertisement and her application could not be rejected by the Selection Committee on the ground that she had not passed the qualifying examination for being considered for selection for the said Nursing course. The action of the Selection Committee in rejecting the application of the petitioner on the ground that she had not passed the qualifying examination of Intermediate/+2 or its equivalent examination was wholly arbitrary, unfair, unreasonable and violative of Article 14 of the Constitution.
7. Now coming to the question of selection, it appears from the counter affidavit that 1/1Oth percentage of the marks secured in the Intermediate examination or equivalent examination is taken into account for the purpose of selection of the candidates for the Post Certificate B.Sc. Nursing course. In this case, since the petitioner had not passed the Intermediate examination or equivalent examination, obviously, a fair and reasonable method has to be found out to consider her case for selection since she had the minimum qualification for the said Nursing course. The procedure laid down in the Letter No. 40309 dated 25.11.1987 of the Government of Orissa in the Health and Family Welfare Department for selection is not a procedure laid down by a statutory rule and in the absence of such statutory rule, the Selection Committee can always adopt some fair and reasonable method for assessing the merit of the petitioner.
8. An interim order was passed by this Court on 26.7.2001 arid one seat in Post Certificate B.Sc. Nursing course was directed to be kept vacant till 16.8.2001 and by another interim order passed by this Court on 15.10.2001 in Misc. Case No. 12099 of 2001, this Court directed the opp. parties to allow the petitioner to attend the classes without formally admitting her into the B.Sc. Nursing course. It is stated by. Mr. Mohanty, learned counsel for the petitioner that pursuant to the said interim orders, the petitioner has been allowed by the opp. parties to attend the classes but she has not been formally admitted into the said Post Certificate B.Sc. Nursing course.
Now that we have held in the judgment that the petitioner had the minimum qualification for applying for the Post Certificate B.Sc. Nursing course, the Selection Committee will consider the case of the petitioner and assess her merit by adopting any fair and reasonable method, if necessary, by calling for such other information and materials from the petitioner as may be required for assessing her merit and if it is found by the Selection Committee that the petitioner comes within the cut-off marks of the selected candidates, she will be given formal admission into the Post Certificate B.Sc. Nursing course by the opposite parties and allowed to continue with the said Nursing course. The aforesaid exercise will be completed by the Selection Committee within a period of two months from the date of receipt of a certified copy of this judgment by the Principal. College of Nursing, Berhampur from the petitioner.
In case, the exercise cannot be completed before the dale of filling up of the forms in the 1st Year Examination to be taken by the students of the Nursing course, the petitioner will be allowed to fill up the forms and her application will be accepted as in the case of other regular students intending to take the examination subject of course to the decision to be taken by the Selection Committee pursuant to the direction in this judgment.
9. With the aforesaid observation and directions the writ petition is disposed of. There shall, however, be no order as to costs.
M. Papanna, J.
10. I agree.