Rajasthan High Court - Jaipur
Prakashwati vs State (Medical And Health)Ors on 17 January, 2018
Author: Ajay Rastogi
Bench: Ajay Rastogi
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
D.B. Civil Writ Petition No.7973/2016
Prakashwati D/o Shri Nourang Lal, aged about 25 years, R/o
Village and Post Aun, Tehsil Charkhi Dadri, District Bhiwani
(Haryana).
----Petitioner
Versus
1. State of Rajasthan through the Principal Secretary, Department
of Medical and Health, Government Secretariat, Jaipur (Raj.).
2. The Director, Department of Medical and Health, Swasthya
Bhawan, Tilak Marg, C-Scheme, Jaipur (Raj.).
3. The Additional Director, Department of Medical and Health,
Swasthya Bhawan, Tilak Marg, C-Scheme, Jaipur (Raj.).
4. Chairman, Indian Nursing Council, New Delhi.
----Respondent
D.B. Civil Writ Petition No.2700/2014 Neha Sarswat D/o. Pritam Lal Balmiki, aged about 22 years, R/o. Mohalla Khandana Near Water Tank Behind Ladies Hospital, Alwar, Rajasthan.
----Petitioner Versus
1. State of Rajasthan through Secretary, Medical and Health Services Rajasthan, Jaipur.
2. The Director, Medical and Health Services Rajasthan, Jaipur, Rajasthan.
3. The Additional, District Medical and Health Services Rajasthasn, Jaipur, Rajasthan.
4. Chairman, Indian Nursing Council, New Delhi.
----Respondent _____________________________________________________ For Petitioner(s) : Ms. Naina Saraf Adv.
Sh. Iliyas Khan Adv.
For Respondent(s) : Sh. Shyam Arya AAG.
Ms. Anuradha Upadhyay Adv.
____________________________________________________ HON'BLE MR. JUSTICE AJAY RASTOGI HON'BLE MR. JUSTICE DINESH CHANDRA SOMANI Order 17/01/2018 Since both these writ petitions have been filed for the self same cause of action, hence with consent of the parties are being decided by the present order.
Indisputably both the petitioners are holding basic (2 of 10) [CW-7973/2016] educational qualification of Senior Secondary Examination and General Nursing & Midwifery Course from the institution approved by Indian Nursing Council ("INC") and their General Nursing Training Course is registered with the respective council i.e. Haryana Nurses Registration Council, Chandigarh & Delhi Nursing Council, Delhi.
Apart from other posts, 15,773 post of Nurse Gr.-II, which is included in the Schedule appended to Rajasthan Medical & Health Subordinate Service Rules,1965 ("Rules,1965") came to be advertised by the respondent vide notification dt.26-2-2013 (Annx.4) and the petitioners being eligible submitted application & participated in the selection process and vide order dt.9-2-2016 final select list with the cut off percentage of marks was published by the respondents and for General Female the final cut off was 64.927 with DOB 25-6-1978 at the same time for Female SC it was 55.444 with DOB 22-4-1989 and both the petitioners have claimed that they have secured higher percentage of marks in their respective category & suitable for appointment on the post of Nurse Gr.-II but that has been denied to each of them on the premise that on the date when they submitted application pursuant to the advertisement dt.26-2-2013 they were not registered with Rajasthan Nursing Council ("RNC") which is one of the condition of eligibility for a candidate to participate in the selection process but we still leave it open for the respondents to revisit the final cut off marks & marks secured by the petitioners while participating in the selection process pursuant to (3 of 10) [CW-7973/2016] advertisement dt.26-2-2013.
At this stage we would like to take note of the Scheme of Rules,1965 which is relevant for the present purpose. The post of Nurse Gr.-II as per Scheme of Rules is to be filled 100% by direct recruitment and prior to amendment notification dt.6-2-2013 those who are holding "(i) RNRC or its equivalent qualification recognized by Govt., (ii) Regd. 'A' Grade Nurse" were considered eligible for appointment to the post of Nurse Gr.-II and such conditions of eligibility came to be amended by the rule making authority in exercise of power conferred by proviso to Art.309 of the Constitution vide notification dt.6-2-2013 laying down conditions of eligibility for the post of Nurse Gr.-II and according to the amendment notification, 90% vacancies are to be filled by direct recruitment through open selection & 10% by departmental employees with different conditions of eligibility prescribed therein and we consider it appropriate to quote extract of the qualification amended vide notification dt.6-2-2013, relevant for the present purpose reads as under :-
"8. Amendment of Schedule.I.- In Schedule-I appended to the said rules,-
(i) under the heading Group A (Medical Side) (Separate Male and Female Cadres),-
(a) the existing part (a) against serial number 4 and entries thereto shall be substituted by the following, namely :-
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(a) Nurse 90% 10% 1. Senior Departmental 1. G.N.M. 1. As regards criteria Grade II secondary or its employees. Course or its for promotion, the equivalent equivalent persons who have
2. G.N.M. Course qualification from trained earlier shall be or its equivalent institute given preference and qualification from recognized by in case the year of institute Government and training is same then recognized by 2. Registered in the length of service Government and R.N.C. shall be given
3. Registered in preference .
R.N.C. 2. If suitable departmental employees are not available for promotion such posts shall be filled in by direct recruitment.
The impediment which came in non-suiting the writ petitioners from being considered for appointment to the post of Nurse Gr.-II keeping the amendment notification dt.6-2-2013 into consideration was that they were not registered with RNC as on the date of advertisement dt.26-2-2013 pursuant to which selection process was initiated by the respondents and to this extent that one has to be registered with RNC its validity has been questioned by the writ petitioners in the present petitions. Although both of them have later been registered with RNC.
It may be relevant to note that the State Government has enacted Rajasthan Nurses, Midwives, Health Visitors & Auxiliary Nurse-Midwives Registration Act,1964 ("Act,1964") with the assent of the President on 28 th day of March,1964 & at the same (5 of 10) [CW-7973/2016] time for effective implementation of the mandate of the Act, 1964 Rajasthan Nursing Council Regulations,1964 has been framed by the competent authority in exercise of power conferred by sub- sec.(1) of Sec.10 read with Sec.24 & sub-sec(2) of Sec.33 of the Act,1964 after obtaining confirmation of the State Government as required by sub-sec.(2) of Sec.10 of the Act,1964 and as per Sec.2(e) of the Act,1964, "nurse" means a person who holds a certificate in nursing granted by any authority recognised in this behalf by the Council and as per Sec.2(b), "Council" means the Rajasthan Nursing Council established u/S.3 of the Act,1964 and who could be considered to be a registered Nurse it has to be registered in accordance with the provisions of the Act,1964 & the Rules & Regulations framed thereunder, at the same time Sec.13
(ii) speaks about the persons entitled to be registered including Nurses who holds certificate of Nursing Council from other approved nursing institutions recognized by Indian Nursing Council. We consider it appropriate to quote Sec.2(e)(h) & Sec.13 of the Act,1964 which is relevant for the present purpose reads as under :-
"2(e) "nurse" means a person who holds a certificate in nursing granted by any authority recognised in this behalf by the Council;
(h) "registered" means registered in accordance with the provisions of this Act and the rules and regulations made thereunder.
13. Persons entitled to be registered. The following persons shall be entitled to be registered under this Act, namely :-
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(i) nurses, midwives, health visitors and auxiliary nurse-midwives who have undergone the course of training prescribed by the Council and have passed the prescribed examination held by the Council and fulfill such further conditions as may be prescribed;
(ii) nurses, midwives, health visitors and auxiliary nurse-midwives holding corresponding certificates issued by authorities in other States in India and foreign Council if such certificates are recognised by the Indian Nursing Council;
(iii) nurses, midwives, health visitors and auxiliary nurse-midwives who are already in practice at the commencement of this Act and fulfill such conditions as may be prescribed."
At the same time Regulations,1964 which has been framed by the competent authority and Chapter-VII lays down the procedure to be followed for the purpose of registration and there is no embargo for a candidate to serve who has passed out Nursing Course from Nursing Institution approved by Indian Nursing Council provided registered within three months after joining service & indisputably both are eligible for being registered with RNC and for the sake of clarification a student who obtain a certificate of Nursing Course from the institution approved by INC and registered in other States like Punjab, Delhi or any other state indisputably can apply for registration to practice as a Nurse in the State of Rajasthan within three months of joining service with RNC & u/clause(2) of Reg.-46 clearly postulates that Nurses, Midwives, Lady Health Visitors who join service in Rajasthan from any other State must have herself/himself registered with the Rajasthan (7 of 10) [CW-7973/2016] Nursing Council within 3 months after joining under clause(ii) of Section 13 of the Act by applying in Form VIII and we consider it appropriate to quote Reg.46 of Part-VII with which we are presently concerned.
"46. Application for Registration.-(1) A candidate after passing the Final/Second examination of any of the above courses shall apply in Form VII for Registration of her/his name under Section 14 of the Act to the Council through the Head of the Institution from which she/he appeared for the Final/Second Examination. The certificate and the registration number which shall be endorsed on the body of the certificate shall be transmitted to the candidate through the Head of the Institution on payment of the following fees:-
(i) for certificate in General Nursing Rs.16/-.
(ii) for certificate in Midwifery Course Rs.10/.
(iii) for certificate in Auxiliary Rs.11/. Nursing Midwifery Course
(iv) the Health Visitors Course Rs.11/.
(2) Nurses, Midwives, Lady Health Visitors who join the service in Rajasthan from any other State must have herself/himself registered with the Rajasthan Nursing Council within 3 months after joining under clause (ii) of Section 13 of the Act by applying in Form VIII.
(3) Nurses, Midwives and Health Visitors entitled to be registered under clause (iii) of Section 13 of the Act shall apply to the Registrar From VIII for Registration to the Rajasthan Nursing Council."
A reading of the amendment notification dt.6-2-2013 that one has to be registered with RNC cannot be said to be (8 of 10) [CW-7973/2016] unreasonable but if conjointly read with Reg.46 of Regulations,1964 it envisages that the applicant who joined service as a Nurse, Midwife, Lady Health Visitor in the State of Rajasthan registered with other State has to seek registration with RNC within three months after joining service under clause(ii) of Sec.13 of the Act by applying in Form VIII.
In the instant case prior to the amendment notification dt.6- 2-2013 the requirement was that one has to be "Regd. 'A' Grade Nurse" but it was nowhere defined that it has to be registered with RNC and that stands clarified by amendment notification dt.6-2- 2013 that the candidate who wants to apply for the post of Nurse Gr.-II has to be registered with RNC and with a follow up action advertisement dt.26-2-2013 came to be notified with no time left for the candidate to be registered with RNC.
It is not the case of the respondents that either of the petitioner was not qualified to be registered with RNC and the only impediment is on the date when they submitted application in reference to the advertisement dt.26-2-2013 each of the petitioner was not registered with RNC as such was not eligible to participate in the selection process but this fact has been completely overlooked that the amendment was introduced vide amendment notification dt.6-2-2013 and simultaneously advertisement came to be notified on 26-2-2013 with no breathing time left for the candidate to proceed in getting himself/herself registered with RNC if intended to participate in the selection process pursuant to advertisement dt.26-2-2013.
(9 of 10) [CW-7973/2016] Although the petitioners have challenged validity & requirement added vide amendment notification dt.6-2-2013 for a candidate to be registered with RNC on manifold grounds and Counsel for the State also supported that in the pre-Amended Medical & Health Subordinate Service Rules,1965 the requirement was implicit for a candidate to be "Regd. 'A' Nurse" & that one has to be registered with RNC has been clarified under the present amendment notification dt.6-2-2013 making it explicit & in terms thereof it is required for a candidate to be registered with RNC under the Act,1964.
After we have heard counsel for the parties, in our view the condition which has been introduced by the respondents vide amendment notification dt.6-2-2013 of one to be registered with RNC cannot be said to be unreasonable or arbitrary as prayed for by the petitioners but at the same time taking note of the Scheme of Regulations,1964 & Reg.46 in particular & also the fact that amendment was made vide notification dt.6-2-2013 and with follow up action advertisement came to be notified on 26-2-2013, it appears that no reasonable time was afforded to the candidates to get themselves registered with RNC which was the condition stipulated under the amendment notification dt.6-2-2013 and this Court considers it appropriate to grant benefit of Reg.46(ii) of Regulations,1964 to the writ petitioners and as both have been later registered with RNC.
In these peculiar fact & circumstances, we consider it appropriate to direct the respondents to consider them eligible for (10 of 10) [CW-7973/2016] the post of Nurse Gr.-II and if any person junior or lower in merit has been considered for appointment on the post of Nurse Gr.II in reference to advertisement dt.26-2-2013 in their respective category, petitioners' candidature may also be considered for appointment on the post of Nurse Gr.II which shall be considered to be a fresh appointment & shall not carry seniority or consequential benefits flowing thereof. Necessary orders be passed by the respondents within two months. No cost.
With these directions/observations, both the writ petitions stand disposed of. Copy of the order be separately placed in the connected file.
(DINESH CHANDRA SOMANI),J. (AJAY RASTOGI),J. VS Shekhawat, PS 21-22