Madhya Pradesh High Court
Zahid Ali Khan vs Secretary State Of M.P. And 4 Ors. on 12 December, 2017
Bench: P.K.Jaiswal, Virender Singh
1 W.P. No.6856/2013
Zahid Ali Khan vs. State of M.P.
HIGH COURT OF MADHYA PRADESH:BENCH AT INDORE
Division Bench: Hon'ble Shri Justice P.K. Jaiswal and Hon'ble Shri
Justice Virender Singh
W.P. No.6856/2013
Zahid Ali Khan
Vs.
State of Madhya Pradesh
W.P. No.7905/2013
Deepak Singh Rajput
Vs.
State of Madhya Pradesh
Coram:
Hon'ble Shri Justice P.K.Jaiswal, Judge,
Hon'ble Shri Justice Virender Singh, Judge.
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Shri Jitendra Verma, learned counsel for the petitioner.
Shri R.K. Mangal, learned Government Advocate for the respondents/State.
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Whether approved for reporting: Yes/No
ORDER
(Passed on 12/12/2017) Per : Virender Singh, J. :
1. Regard being had to Similitude of the controversy in both these petitions; these are heard analogously and are being decided with this common order.
2. The petitioner has challenged advertisement dated 20/05/2013 (Annexure-P/1) issued by Director, M.P. Vyavsayik Pariksha Mandal (respondent No.3) (in short "Mandal") inviting applications for 2000 vacant posts of "Staff Nurse" only from female candidates. The petitioner has also challenged notification dated 26/07/2011 (Annexure-P/2) issued by the 2 W.P. No.6856/2013 Zahid Ali Khan vs. State of M.P. Government of Madhya Pradesh, Public Health and Family Welfare Department, whereby in exercise of powers conferred under Article 309 of the Constitution of India, the State Government made amendment in the rules regulating the recruitment of Nurses known as the Madhya Pradesh (Directorate of Health Services) Class-III, Nurse Service Recruitment Rules, 1989 (in short the Recruitment Rules, 1989) whereby the posts of 'Nurse' is exclusively reserved for woman and also the qualification prescribed that the candidates applying for the post of 'Staff Nurse' must be Higher Secondary (10+2) with Physics, Chemistry and Biology.
3. For convenience facts are being taken from WP No. 6856/2013.
4. Background facts sans unnecessary details are that the petitioner passed High School Examination in March, 2000 and Higher Secondary Examination in May, 2002 (Annexure-P/3 & P/4). Thereafter he completed 3 years diploma in "General Nursing Midwifery" from "Khadija Institute of Nursing", Gulbarga, Karnataka, a duly recognized Institute, within the meaning of Section 24(1) of The Madhya Pradesh Upcharika, Prasavika, Sahaik Upcharika, Prasavika Tatha Swasthya Paridarkshak Registrikaran Adhiniyam, 1972 [Act 46 of 1973] (in short Registrikaran Adhiniyam, 1972) (Annexure-P/5). After completing training and clearing the examination conducted by "Mahakaushal Nurses Registration Council", he was granted Diploma in GNM and his name was registered as GNM at serial No.275 (Annexure-P/6 & P/7).
5. In the year 2010, the Director, Vyavsayik Pariksha Mandal published an advertisement dated 26/07/2010 (bearing No.9/Nursing prashikshan-
3/10/1114) inviting application with regard to 1932 posts of "Staff Nurse" only from female candidates who qualified 10+2 with Physics, Chemistry and Biology referring to order dated 18/06/2010 (bearing No.F3- 12/2010/17/MEDI-1) passed by the Department of Public Health and Family Welfare (Annexure-P/9).
6. Being aggrieved by the advertisement (Annexure-P/9) five writ petitions W.P. No.10478/2010, W.P. No.10550/2010, W.P. No.10551/2010, W.P. No.10552/2010 and W.P. No.10592/2010 were filed before this Court. The 3 W.P. No.6856/2013 Zahid Ali Khan vs. State of M.P. advertisement was challenged on the ground that there is no embargo on recruitment of 'Male Nurse' on the post of 'Staff Nurse' in the recruitment Rules, 1989. On the contrary the Registrikaran Adhiniyam, 1972, which governs the eligibility of a person to work as a "Nurse", defines "Nurse" under Section 2 (b) to include a "Male Nurse". Section 16 of Registrikaran Adhiniyam, 1972 provides that "no person other than a registered nurse, midwife auxiliary nurse - midwife or health visitor shall be eligible to hold any appointment as nurse, midwife, auxiliary nurse-midwife or health visitor in any hospital, asylum, infirmary, dispensary, maternity of child welfare centre or any other medical or public health institution", which means that once a candidate is a "registered nurse" whether male or female is entitled to work as "nurse", if found eligible otherwise.
7. The Court vide order dated 22/11/2010 allowed the writ petitions and quashed the advertisement dated 26/07/2010 (Annexure-P/9) on the ground that there is no provision in the Recruitment Rules, 1989 to reserve 100% posts for female candidates. Para 13 of the order reads: "Keeping in view of the aforesaid judgment delivered by the Apex court, there is no manner of doubt that there cannot be 100% reservation in favour of women candidates as the same is against the statutory provisions, resultantly, the impugned advertisement is hereby quashed. The respondents are permitted to issue fresh advertisement strictly keeping in view the provisions of the Recruitment rules, 1989. It is needless to mention here that the respondents while issuing a fresh advertisement shall reflect the qualification prescribed under the Schedule 3 of the rules 1989 and shall be free to reserve the posts upto extent of 30% as provided under the provision of M.P. Civil Services (Special provision for appointment of Women) Rules 1997"
(Annexure-P/11).
8. Against the said order, the State Government filed writ appeals No.182/2011, 183/2011, 184/2011, 185/2011 and 186/2011 which were dismissed by Division Bench of this Court vide order dated 18/05/2012. The Court held in para 10 "in view of foregoing discussion and the stand as now taken by the appellants, we do not find any illegality with the 4 W.P. No.6856/2013 Zahid Ali Khan vs. State of M.P. order of learned Single Judge. In intra court appeal we do not exercise appellate powers over the decision of the learned Single Judge. The jurisdiction in intra court appeal is limited to rectify mistake, if any, committed by the learned Single Judge while deciding a writ petition. In this view of the matter we find no merit and substance in this intra court appeal and the same is accordingly dismissed but with no orders as to costs." (Annexure-P/12).
9. The order of the Division Bench was challenged before Hon'ble the Supreme Court through SLP No. No.27731/2012, which was also dismissed vide order dated 24/09/2012.
10. The State Government vide notification dated 26/07/2011 amended the recruitment rules and reserved the post of "Staff Nurse" exclusively for woman and also modified the qualifications and prescribed that the candidates applying for the post of "Staff Nurse" must possess Higher Secondary (10+2) with Physics, Chemistry and Biology. This amendment is the subject matter of the present petition.
11. G.R. Medical College, Gwalior issued an advertisement in regard to appointment on the post of 417 Staff Nurses. The posts were reserved for female candidates including disabled persons. This advertisement was challenged in WP 855/2012, which was allowed vide order dated 02/02/2012. Against the order of the Writ Court, a Writ Appeal No. 217/2012 was preferred by the State, which was allowed vide order dated 14/02/2013. The learned Court held that while passing the order in Writ Petition, the learned Writ Court did not consider amendment dated 26/07/2011. Now the Rules have been framed and advertisement has been issued/published as per Rules and vires of Rules is not challenged, therefore, the advertisement cannot be quashed.
12. Now the petitioner has come before this Court for following reliefs:
(a) issue appropriate writ, direction or order and quash advertisement dated 20.05.2013 bearing no.43-A/2013 (Annexure P/1) issued by respondent no.3 and ;
(b) issue appropriate writ, direction or order and quash the Gazette Notification dated 26.07.2011 (Annexure P/2) issued by 5 W.P. No.6856/2013 Zahid Ali Khan vs. State of M.P. State Government as it is absolutely against the mandate of the Constitution of India and be declared it as Ultra Vires.
(c) issue appropriate writ, direction or order directing the respondents to issue fresh advertisement in accordance with law, permitting male nurses to apply for posts of "Staff Nurse" and ;
(d) issue any other appropriate writ, direction or order, which this Hon'ble Court deems just and fair in the circumstances of the case.
(e) The petitioner may be awarded cost of this petition.
13. It is the case of the petitioner that the aforesaid amendment in recruitment rules is against mandate of Article 14 of the Constitution of India which states that the State shall not deny any person equality before the law and the equal protection of law within the territory of India. It is also against the mandate of Article 15 of the Constitution of India, which provides prohibition of discrimination on the grounds of religion, race, caste, sex or place of birth. Similarly, it is against Article 16 of the Constitution of India which provides that there should be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State and further no citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.
14. It is further contended that in-spite-of the order of this Court quashing earlier advertisement dated 26/07/2010 reserving 100% posts of "Staff Nurse" for female candidate and also modifying necessary qualification as 10+2 with Physics, Chemistry and Biology, the respondents have issued a fresh advertisement (Annexure-P/1) dated 20/05/2013 inviting applications for the post of "Staff Nurse" only from female candidate, who qualified 10+2 with Physics, Chemistry and Biology. Due to this notification, the candidates qualified as "General Nurse Midwife" holding a valid diploma and are registered with "Mahakaushal Nurses Registration Council" cannot apply for the said post, which is absolutely illegal and contrary to the recruitment rules. There is no basis for barring the male nurses from applying for the said post. Even, the recruitment rules formulated by the Department of Public Health and Family Welfare, applicable to the post of "Staff Nurse" do not discriminate male nurses, from being recruited on the post "Staff Nurse". The notification 6 W.P. No.6856/2013 Zahid Ali Khan vs. State of M.P. is wrong, illegal, unjust, arbitrary, discriminatory on the ground of sex and against the mandate of Article 14, 15 and 16 of the Constitution of India and also against the recruitment rules. It is prayed that the advertisement dated 20/05/2013 be set-aside.
15. In common reply, the respondents have stated that the definition of 'Nurse' given in Section 2(b) Registrikaran Adhiniyam, 1972, which includes male nurse in the definition of 'Nurse' has no relation with the recruitment of Nurses. This definition does not have overriding effect over the recruitment Rules. A bare perusal of the recruitment Rules particularly Rule 4 clearly provide that the service shall consist all the persons who at the commencement of these rules are holding substantive posts as mentioned in Schedule I to the Recruitment Rules, 1989. Schedule I clearly shows that various posts which are mentioned in this Schedule deal with the persons who are female. It is further submitted that even prior to the year 1989, the working cadre nurses of Public Health Department comprised only females. Gradation list of all cadres of Nurses like; Paricharika, nursing superintendent, sister tutor, matron, staff nurse consist of only females.
16. Recruitment Rules, 1989 framed with the object to provide nursing aid and assistance to the children, pregnant women and other patients who come for treatment in the Government Medical Institutions. Looking to the nature of work, in the Public Health Department recruitment of only females in the nursing cadre is provided by the recruitment Rules, 1989. But in these rules male nurses are not debarred from being recruited in the other department of Government or in other agencies like private hospital or other institute imparting service related to health.
17. The judgment passed in set of writ petition No.10478/2010 and confirmed by the Hon'ble Supreme Court does not have any bearing on this case as the Recruitment Rules were not considered in these writ petitions. Later Division Bench of this Court has dealt with the recruitment Rules in W.A. No.217/2012 and vide order dated 14/02/2013 allowed the writ appeal directing that the State Government can very well issue advertisement in accordance with the Recruitment Rules for recruitment of only female candidates, particularly in view of the amended provision of recruitment 7 W.P. No.6856/2013 Zahid Ali Khan vs. State of M.P. Rules, 1989, therefore, there is no illegality or infirmity in the decision of the State Government.
18. It is the further contention of the respondents that the word "Staff Nurse" itself connotes a female person. Various dictionaries like Stedman's Medical Dictionary, Abhinav Medical Dictionary, Hindi-English Dictionary of Government word and phases written by Dr. Raghuveer, dealing with the word "Staff Nurse" and other relevant words define the word 'Nurse', which clearly indicate that 'Nurse' means a female.
19. The duty of a nurse is to provide medical care, attention to sick patients, children, to conduct delivery of woman, to give medical assistance to lactating women and other woman patients which require a great deal of patience, sympathy and care. Patients particularly women and children feel comfortable when being treated by female nurses as compared to male nurses. The State Government runs various schemes which are predominantly meant for woman patients, this work can only be done by a female nurse. If the male nurses are allowed in such type of services, it would frustrate the object of the Recruitment Rules, 1989.
20. This is a protective measure also which based on public morals to give the women equality in socio, economic activities of the nation, to eliminate their social and economic backwardness and to empower them in a manner that would bring out effective equality between man and woman. This provision was inserted with the object to strengthen and improve the status of woman and important limb of this concept of general equality is creating job opportunity for woman. The action of the State Government rests on reasonable basis and is based on the object of the Act which is to be achieved by the recruitment of female candidates on the post of nurses.
21. Article 15 (3) of the Constitution of India permits the State Government to make special provision for woman. This power is not in any way restricted by Article 16 of the Constitution of India. While interpreting the power of the State under Article 15 (3) of Constitution of India for making special provision for woman the object and the purpose for which provision has been made by the State Government is to be considered. Provision of Article 16 of 8 W.P. No.6856/2013 Zahid Ali Khan vs. State of M.P. Constitution of India does not touch upon any special provision for woman being made by the State, therefore, it cannot be in any manner derogate from the powers conferred upon the State for making special provision under Article 15 (3) of the Constitution of India. Argument of the petitioner that the Rules are in violation of Article 14, 15 and 16 is not correct. Recruitment Rules have been framed for furtherance of particular object which being in consonance with Article 15 (3) of the Constitution of India and are not discriminatory or in derogation to the provisions of Article 16 (2) of the Constitution of India.
22. After amendment now there is no ambiguity in the Recruitment Rules, which provide recruitment of only female candidates and this provision is protected under Article 15 (3) of the Constitution of India. Therefore, the Rules framed by the State Government deserve to be declared intra virus by this Court.
23. In rejoinder, the petitioner has denied all the submissions of the respondents and reiterated the facts and arguments raised in the petition. It is submitted that controversy that the Recruitment Rules, 1989 apply to male or female has already been decided and the same is confirmed by Hon'ble the Apex Court in the case of State of Madhya Pradesh vs. Sajid Khan in SLP No.27731/2012 decided on 24/09/2012 (Annexure-P/13).
24. It is also submitted that number of male staff nurses in different departments of the State Government like Model Hospital and Occupational Diseased Centre which is run and control by Employee State Insurance Corporation male staff nurse is promoted on the post of "Sister Tutor". Similarly, according to Gradation List dated 29.06.2013 issued by the State Government, Male "Staff Nurse" were promoted to the post of "Nursing Sister", therefore, statement of respondents that the cadre of "Nurse" only comprised by the females is not correct. (Annexure-P/14 and P/15).
25. The Indian Nursing Council is a body under the Government of India, Ministry of Health & Family Welfare was constituted by the Central Government under Section 3 (1) of the Indian Nursing Council Act, 1947 of parliament in order to establish a uniform standard of nursing education, 9 W.P. No.6856/2013 Zahid Ali Khan vs. State of M.P. training and appointment for Nurses Midwife, Auxiliary Nurse-Midwives and Health Visitors. in the aforesaid Act, 1947, there is no bar or embargo for appointment of male candidate on the post of "Staff Nurse" (Annexure-P/16).
26. In exercise of powers conferred by the proviso under Article 309 of the Constitution of India, the State Government Rajasthan has framed "Rajasthan Medical & Health Service Rules, 1963", which provides only 30% reservation of woman for the post of "Staff Nurse" and there is no bar for male candidates to apply for the post of "Staff Nurse". The other States have also framed the similar Rules. Recently, the State of Maharashtra has issued an advertisement inviting application for the post of "Staff Nurse" without discrimination of male or female. (Annexure-P/18)
27. There is no complaint about the work performance of the "Male Staff Nurse". On the contrary, the "Male Staff Nurse" are discharging their duties sincerely, diligently and to the best of their ability in comparison to "Female Staff Nurse". The petitioner reiterated his prayer to declare the Recruitment Rules, 1989 utra vires.
28. During pendency of the petition the State Government has further amended Schedule-I of the Recruitment Rules, 1989 vide notification dated 27/06/2017 (Annexure-R/8) and has withdrawn earlier notification dated 26/07/2011 (Annexure-P/2). As per the amendment, bar on recruitment of "Male Staff Nurse" is removed. Number of posts for the "Male Staff Nurse" is fixed at 10% of the total sanctioned posts. It is submitted that in the light of this amendment, the Respondents be permitted to issue advertisement for appointment of 'Staff Nurse' including Male and Female. (Annexure R/8)
29. The vires of the recruitment rules is challenged only on the ground that 100% reservation in favour of female is against the mandate of Article 14,15,16 of the Constitution of India, but now the same has been withdrawn by the State Government vide notification dated 27/06/2015, therefore, we are of the opinion that now in the changed circumstance, there is no need to consider vires of the amended rules. The State Government is ready to issue fresh advertisement for the posts of "Staff Nurse" according to the amended rules inviting application from both male and female aspirants and notification 10 W.P. No.6856/2013 Zahid Ali Khan vs. State of M.P. dated 26/07/2011 (Annexure-P/2) is already withdrawn; therefore, there is no need to issue any writ, direction or order directing the respondents to issue advertisement in accordance with law, permitting male nurses to apply for the posts of "Staff Nurse".
30. As far as issue of prescribing compulsory qualification of 10+2 with Physics, Chemistry and Biology is concerned, that is prescribed for all aspirants and no discrimination amongst the candidates is being done on this ground. The law in this regard is well settled. The Hon'ble Supreme Court has held in Arun Tewari and others Vs. Zila Mansavi Shikshak Sangh and others etc. AIR 1998 SC 331 that "A higher qualification which is prescribed for a particular scheme cannot be considered as violative of Article
14. When candidates with higher qualifications are available, choosing them instead of candidates with inferior qualifications is not violation of Article 14 or
16." (Para18)
31. In Chandigarh Administration through The Director, Public Instructions (Colleges), Chandigarh v. Usha Kheterpal Waie and Ors AIR 2011 SC 2956 the Apex Court has stated that it is now well settled that it is for the rule-making authority or the appointing authority to prescribe the mode of selection and minimum qualification for any recruitment. Normally the Court should not interfere if the qualification is not unrelated to the duties and functions of the post to be filled up. Relevant paras of the judgement reads thus:
6. Respondents 1 to 4 had joined UT Colleges (Arts and Science) cadre in 1969 and 1970 and were serving as lecturers in the Government Arts and Science Colleges. None of them possessed a Ph.D. degree. They filed OA No.684/CH/2001 before the Central Administrative Tribunal challenged the said Recruitment Rules and the advertisement dated 14.7.2001, as unconstitutional and for a direction that they along with other eligible candidates from the UT cadre should be considered for promotion to the said post. It was contended that the Administrator of the Union Territory had no power to make the said Recruitment Rules, as it was only the President of India who was competent to frame such rules under Article 309 of the Constitution of India. They also contended that on earlier occasions the appellant had promoted lecturers as Principals 11 W.P. No.6856/2013 Zahid Ali Khan vs. State of M.P. without insisting upon the qualification of Ph.D.; and that though they did not possess Ph.D. degree, having regard to the eligibility criteria earlier being applied, they were eligible for being considered for the post of Principals, and the Chandigarh Administration should fill the vacancies of Principals, by applying the eligibility criteria which was prevalent prior to the making of the said recruitment rules.
11. Even in the absence of valid rules, it cannot be said that the advertisement was invalid. In exercise of its executive power, the appellant could issue administrative instructions from time to time in regard to all matters which were not governed by any statute or rules made under the Constitution or a statute.....
12. The Tribunal and High Court also committed an error in holding that the appellant could not prescribe the qualifications of Ph.D. for the post of principal merely because earlier the said educational qualification was not prescribed or insisted. The Recruitment Rules were made in consultation with UPSC, to give effect to the UGC guidelines which prescribed Ph.D. degree as the eligibility qualification for direct recruitment of Principals. In fact, even the 1976 Punjab Rules prescribed Ph.D. degree as a qualification. In several States, Ph.D. is a requirement for direct recruitment to the post of a college Principal. When the said qualification is not unrelated to the duties and functions of the post of Principal and is reasonably relevant to maintain the high standards of education, there is absolutely no reason to interfere with the provision of the said requirement as an eligibility requirement.
It is now well settled that it is for the rule-making authority or the appointing authority to prescribe the mode of selection and minimum qualification for any recruitment. Courts and tribunals can neither prescribe the qualifications nor entrench upon the power of the concerned authority so long as the qualifications prescribed by the employer is reasonably relevant and has a rational nexus with the functions and duties attached to the post and are not violative of any provision of Constitution, statute and Rules.[See J. Rangaswamy v. Government of Andhra Pradesh (1990) 1 SCC 288 : (AIR 1990 SC 535 : 1990 Lab IC 296) and P.U. Joshi v. Accountant General (2003) 2 SCC 632 : (AIR 2003 SC 2156 : 2003 AIR SCW 272 : 2003 Lab IC
435).In the absence of any rules, under Article 309 or Statute, the appellant had the power to appoint under its general power of administration and prescribe such eligibility criteria as it is considered to be necessary and reasonable. Therefore, it cannot be said that the prescription of Ph.D. is unreasonable.
12 W.P. No.6856/2013Zahid Ali Khan vs. State of M.P.
32. Thus, in view of the aforesaid discussion and also in the changed circumstance, nothing remained in the present petition, therefore, without commenting on merits of the issues raised in the petition, the petitions stands disposed off. The petitioner shall be at liberty to raise all these grounds in an appropriate proceeding.
(P.K. Jaiswal) (Virender Singh)
Judge Judge
Aiyer*