Punjab-Haryana High Court
Santosh Sodhi And Others vs State Of Punjab And Others on 18 July, 2013
Author: Tejinder Singh Dhindsa
Bench: Tejinder Singh Dhindsa
CIVIL WRIT PETITION NO.1435 of 2012 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CIVIL WRIT PETITION NO.1435 of 2012
DATE OF DECISION: JULY 18, 2013
Santosh Sodhi and others .......Petitioners
Versus
State of Punjab and others .......Respondents
CORAM:- HON'BLE MR.JUSTICE TEJINDER SINGH DHINDSA
Present: Mr.Gurminder Singh, Advocate for the petitioners.
Ms.Sudeepti Sharma, Deputy Advocate General,Punjab
for respondents No.1 and 2.
Mr.SB Kaushik, Advocate for respondent No.3.
Mr.GS Attariwala, Advocate for respondents No.5 to 8.
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TEJINDER SINGH DHINDSA, J.
The petitioners, who are working on the post of Staff Nurse under the Department of Health and Family Welfare, State of Punjab, have filed the instant writ petition impugning the promotion of private respondents No. 4 to 8 to the post of Sister Tutors/Public Health Nurse (Teaching) vide orders carrying even date i.e. 16.11.2011 at Annexures P3 and P4. Further prayer is for the issuance of a writ in the nature of mandamus for directing the official respondents to consider the claim of the petitioners for Malik Sushama Rani 2013.07.19 10:34 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.1435 of 2012 2 appointment to the post of Sister Tutors/Public Health Nurse (Teaching) on the basis that they are eligible for such post but have been ignored on account of respondents No. 4 to 8 having been so promoted inspite of not being eligible and not possessing the required qualifications.
2. Facts of the present case lie in a very narrow compass. The Director, Health and Family Welfare, Punjab issued circular dated 24.2.2011 for filling up the vacant posts of Public Health Nurses (Teaching) by way of promotion from amongst Staff Nurses. As per circular, the Staff Nurses working in the Health Institutes of the State who have passed the B.Sc. (Nursing) Course from a recognized University/Institute and registered with the Punjab Nursing Council under the Punjab Nursing Registration Act, 1932 as also possessing a minimum five years experience as Staff Nurse were eligible. Another circular dated 31.12.2010 on the same lines had been issued by respondent No.2 calling for applications from the Staff Nurses for promotion to the post of Sister Tutors. It has been pleaded that the petitioners were eligible and had applied for the post of Sister Tutors/Public Health Nurse (Teaching). However, vide impugned orders dated 16.11.2011 at Annexures P3 and P4, respondents No. 4 to 8 have been promoted as Sister Tutors/Public Health Nurse (Teaching) and the petitioners have been ignored.
3. Mr.Gurminder Singh, learned counsel appearing for the petitioners, would submit that the private respondents have obtained the Degrees of B.Sc. Nursing from Indira Gandhi National Open University (IGNOU) through the mode of distance education Malik Sushama Rani 2013.07.19 10:34 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.1435 of 2012 3 programme and which is not a recognized qualification as per standards prescribed by the Indian Nursing Council. It has been argued that the standards regarding education and training of Nursing are governed by the Indian Nursing Council which has been constituted by the Central Government under Section 3(1) of the Indian Nursing Council Act, 1947 (for short '1947 Act'). Learned counsel would argue that the regulations framed by the Indian Nursing Council are binding on Institutions running nursing programmes and the standards prescribed by the apex body in the nature of Indian Nursing Council would have over-riding effect being the body under Entry-66 of List 1 of the VIIth Schedule to the Constitution of India and such standards of education laid down by the Indian Nursing Council would supersede and over- ride the mandate of any Statutory Rule framed by the State Government if there be any conflict. Towards such assertion, reliance has been placed upon the judgment of the Hon'ble Supreme Court of India in Dr.Preeti Srivastava and another v. State of Madhya Pradesh and others, 1999(3) RSJ 610.
4. Learned counsel has vehemently argued that the qualifications of B.Sc. (Nursing) possessed by respondents No. 4 to 8 through distance education mode from IGNOU cannot be construed as equivalent to the prescribed qualification required to be eligible for promotion to the post of Sister Tutor/Public Health Nurse (Teaching). Towards such assertion, heavy reliance has been placed upon Indian Nursing Council Resolution circular dated 15.7.2010 appended as Annexure P6 and the relevant portion of which would read in the following terms: Malik Sushama Rani 2013.07.19 10:34 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.1435 of 2012 4
"Govt. of Kerala has issued an order stating that unlike any other profession, B.Sc.(N) degree is a blend of theory and practical. During the clinical practice, the students receive direct supervision and guided practice as the course being a systematic and scientific one. Lot of clinical teaching is extended to them by the nursing and medical faculty during the period. To conduct research projects and P.B. B.Sc.(N) curriculum provides specific session of hours on practice teaching that prepares an individual to work as an effective teacher. IGNOU programme lacks the above component. Hence P.B. B.Sc.(N) course conducted by the IGNOU cannot be equated to regular programme."
5. Learned counsel would even refer to the Minutes of the 87th General Body Meeting of the Indian Nursing Council held on 26.6.2011 and would refer to Item No.49 which was taken up in the meeting and approved as under:
"Item No.49:- Distance Education offered by IGNOU Chairperson apprised the members that distance education offered by IGNOU need to be reviewed, that whether these qualification can be considered for the promotion to different steam (from practice to teaching) or to be considered as in-service education as per the ruling of the Kerala High Court NEC member opined that the students qualifying from the recognized centers by the INC are only eligible for Malik Sushama Rani 2013.07.19 10:34 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.1435 of 2012 5 further studies. As per the Hon'ble Kerala High Court order that IGNOU qualified candidates are not eligible to become nursing tutors which may equally apply to other distance learning programmes as well. Executive Committee approved the recommendation of Nursing Education Committee. GB approved the recommendation of NEC."
6. In the light of resolution circular dated 15.7.2010 and Item No.49 in the Minutes of 87th General Body Meeting of Indian Nursing Council, it is contended that the post basic B.Sc. (Nursing) Course conducted by IGNOU cannot be equated to the regular programme and as such, candidates like respondents No. 4 to 8 who have acquired their qualifications from IGNOU cannot be treated as being eligible for being recruited to the post in question i.e. Sister Tutor/Public Health Nurse (Teaching).
7. Per contra, learned State counsel would refer to the joint written statement filed on behalf of respondents No. 1 and 2 to contend that respondents No. 4 to 8 were found to be eligible by the duly constituted Departmental Promotion Committee for the post of Sister Tutor/Public Health Nurse (Teaching) under the statutory provisions governing the service. It has further been stated that the private respondents have passed their B.Sc. post- basic (Nursing) qualification from the IGNOU, New Delhi which is a recognized University. Learned State counsel has submitted that the promotion orders have been issued after considering all such Staff Nurses who were eligible and after scrutinizing their service record strictly in order of seniority.
Malik Sushama Rani2013.07.19 10:34 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.1435 of 2012 6
8. Mr.GS Attariwala, Advocate has appeared on behalf of respondents No. 5 to 8 and would argue that IGNOU was established by an Act of Parliament and such University is duly recognized by the University Grant Commission and also the Indian Nursing Council. Learned counsel for the private respondents would further submit that the Degree of B.Sc. (Nursing) offered by IGNOU stands duly recognized by the Indian Council of Nursing and respondents No. 5 to 8 stood duly registered with the Punjab Nurses Registration Council apart from possessing the requisite experience. In a nut-shell, it has been submitted that the private respondents were eligible to be considered for promotion to the post in question and possessed a good service record and, accordingly, have been rightfully promoted vide promotion orders dated 16.11.2011 at Annexures P3 and P4.
9. Indian Nursing Council impleaded as party respondent No.3 was duly represented through counsel but a statement was made on 24.1.2013 that there would be no requirement of filing any reply. Such stand of not joining issue was re-iterated by Mr.SB Kaushik, learned counsel appearing for respondent No.3 even on 5.7.2013 i.e. at the stage of final arguments.
10. Recruitment to the post of Sister Tutor/Public Health Nurse (Teaching) is governed by the Statutory Rules called the Punjab Health and Family Welfare Technical (Group-C) Service Rules, 2007 (for short 'Service Rules, 2007'). Relevant entry in Appendix 'B' to the Service Rules, 2007 is in the following terms: Malik Sushama Rani 2013.07.19 10:34 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.1435 of 2012 7
SrNo Designat- Percentage of Method of appointment, ion of the appointment Qualifications and post Experience for appointment by 1 2 3 4 5 6 1 Nursing xxxxxx xxxxxx Xxxxxx Xxxxxxx Sister 2 Sister Fifty Fifty i. Should From Tutor percent percent possess the amongst the degree of Staff Nurses, Bachelor of who have an Science in experience Nursing from of working a recognized as such for a University or minimum Institutions period of 5 and years, and who possess ii. should be a requisite registered qualification with the prescribed Punjab Nurses for direct Registration appointment Act 1932 of Sister (Punjab Act Tutor No.1 of 1932) 3 Public Fifty Fifty i.should From Health percent percent possess the amongst the Nurse degree of Staff Nurses, (Teaching) Bachelor of who have an Science in experience Nursing from of working a recognized as such for a University or minimum Institutions. period of 5 years and ii. should be registered who possess with the a requisite Punjab Nurses qualification Registration prescribed Council for direct established appointment under the of Public Punjab Nurses Health Nurse Registration (Teaching).
Act, 1932
(Punjab Act
No.1 of 1932).
11. A bare perusal of Appendix 'B' would reveal that the posts of Sister Tutors/Public Health Nurse (Teaching) are to be filled up 50% by direct appointment and 50% by promotion from Malik Sushama Rani 2013.07.19 10:34 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.1435 of 2012 8 amongst Staff Nurses having five years experience and possessing a Degree of B.Sc. (Nursing) from a recognized University/Institution and furthermore, such Staff Nurses should be registered with the Punjab Nurses Registration Council.
12. To appreciate the argument raised by learned counsel for the petitioners that the standards prescribed by the apex body i.e. Indian Nursing Council would have over-riding effect and that the qualification of B.Sc. (Nursing) acquired by the private respondents from IGNOU cannot be considered as a recognized qualification, an over view of the scheme of 1947 Act would be expedient.
13. The 1947 Act was enacted with the clear objective to establish a uniform standard of training for nurses, midwives and health visitors. Under Section 2(a), 'Council' means a Council constituted under the Act; b) 'Prescribed' means prescribed by regulations made under Section 16; c) 'State Council' means a Council constituted under the law of a State to regulate the registration of nurses, midwives or health visitors in the State;
and d) 'State Register' means a register of nurses, midwives or health visitors maintained under the law of a State.
14. Section 10 of 1947 Act governs recognition of qualifications and Section 14 governs withdrawal of recognition. Section 15 deals with the mode of 'declarations' and mandates that 'declarations' under Section 10 or Section 14 shall be made by resolution passed at a meeting of the Council called for the declarations purpose and shall forthwith be published in the Official Gazette.
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15. The petitioners have relied upon resolution circular dated 15.7.2010 at Annexure P6 as also Item No.49 in the Minutes of the 87th General Body Meeting of the Indian Nursing Council held on 26.6.2011 at Annexure P6/A. A conjoint reading of the same does not bear out that the B.Sc. (Nursing) course conducted by IGNOU is not a recognized qualification. That apart, learned counsel for the petitioners has not referred to any Gazette notification to substantiate that such resolution circular dated 15.7.2010, Annexure P6, and decision on Item No.49 in the General Body Meeting held on 26.6.2011 of the Indian Nursing Council, Annexure P6/A, have fructified to assume the character of 'declarations' as per mandate of Section 15 of the 1947 Act.
16. Section 16 of 1947 Act empowers the Council to make regulations. Relevant extract of sub-section (1) of Section 16 of the Act would show that the Council can discharge any of the following functions:
"a) the management of the property of the Council and maintenance and audit of its accounts;
b) the manner in which elections referred to it sub-
section (2) of section 5 and in clause (a) of sub-section (2) of section 8 shall be conducted;
c) the summoning and holding of the meetings of the Council, the times and places at which such meetings shall be held, the conduct of business thereat and the number of members necessary to constitute a quorum;
d) prescribing the functions of the Executive Committee, the summoning and holding of meetings Malik Sushama Rani 2013.07.19 10:34 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.1435 of 2012 10 thereof, the times and places at which such meetings shall be held, and the number of members necessary to constitute a quorum;
e) prescribing the powers and duties of the President and the Vice-President;
1[f) prescribing the tenure of office and the powers and duties of the Secretary and other officers and servants of the Council;
ff) prescribing the powers and duties of inspectors:]
g) prescribing the standard curricula for the training of nurses, midwives and health visitors, for training courses for teachers of nurses, midwives and health visitors, and for training in nursing administration
h) prescribing the conditions for admission to course of training as aforesaid;
i) prescribing the standards of examination and other requirements to be satisfied to secure for qualifications recognition under this Act;
j) any other matter which is to be or may be prescribed under this Act."
17. A perusal of the aforesaid Section would make it apparent that the Council has been given the power to prescribe the standard curricula for the training of nurses, midwives and health visitors, for training courses for teachers of nurses, midwives and health visitors and for training in nursing administration. According to clause (h), the Council can also prescribe the conditions for admission to courses of training as Malik Sushama Rani 2013.07.19 10:34 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.1435 of 2012 11 prescribed in clause (g) and also it could prescribe the standards of examination and other requirements to be satisfied to secure recognition under this Act. From the aforesaid provision, no power has been vested with the Nursing Council to prescribe qualifications for appointment either by way of direct recruitment or by way of promotion to the post of Sister Tutor/Public Health Nurse (Teaching).
18. Under Section 11 of the 1947 Act, any recognized qualification shall be a sufficient qualification for enrollment in any State register and no person shall, after the date of commencement of the Act, be entitled to be enrolled in any State register as a nurse, midwife, auxiliary nurse-midwife, health visitor or public health nurse unless he or she holds a recognized qualification. Admittedly, respondents No. 4 to 8 stand duly registered with the Punjab Nurses Registration Council established under the Punjab Nurses Registration Act, 1932. Such registration would lead to the clear inference that the B.Sc.(Nursing) qualification that they possess is a recognized qualification.
19. There is another aspect of the matter. In the written statement filed on behalf of respondents 5 to 8, it has been categorically averred that IGNOU is duly recognized by the University Grant Commission and the Indian Nursing Council. It has also been averred that the Degree of B.Sc.(Nursing) offered by IGNOU is duly recognized by the Indian Nursing Council. Furthermore, it has been averred that on account of their Degree of B.Sc. Nursing having been acquired from a recognized University they stand duly registered with the Punjab Nurses Malik Sushama Rani 2013.07.19 10:34 I attest to the accuracy and integrity of this document CIVIL WRIT PETITION NO.1435 of 2012 12 Registration Council. Such categoric pleadings have not met with any rebuttal at the hands of the petitioners either in the form of placing on record any documents/official Gazette to assert to the contrary and neither has any replication been filed.
20. In view of the discussion hereinabove and in the light of the pleadings on record, there is no basis for this Court to conclude that the qualification of B.Sc. (Nursing) possessed by the private respondents is not a recognized qualification so as to treat them as ineligible under the Statutory Rules for promotion to the post of Sister Tutors/Public Health Nurse (Teaching).
21. The writ petition is, accordingly, dismissed.
( TEJINDER SINGH DHINDSA )
JULY 18, 2013 JUDGE
SRM
Note: Whether to be referred to Reporter? Yes/No
Malik Sushama Rani
2013.07.19 10:34
I attest to the accuracy and
integrity of this document