Orissa High Court
Afr Durga Madhab Dakua & Another vs State Of Odisha & Ors. .... Opposite ... on 27 September, 2021
Author: Biswanath Rath
Bench: Biswanath Rath
IN THE HIGH COURT OF ORISSA AT CUTTACK
WPC(OAC) NO.1889 OF 2017
AFR Durga Madhab Dakua & Another ... Petitioners
Ms.S.Mohapatra, Advocate
-versus-
State of Odisha & Ors. .... Opposite Parties
Mr.H.K.Panigrahi, ASC
CORAM :
JUSTICE BISWANATH RATH
Date of Hearing & Judgment : 27.09.2021
1.Original Application No.1889(C) of 2017 was filed before the Orissa Administrative Tribunal, Cuttack Bench is taken up for hearing being transferred under the situation of closure of the State Administrative Tribunal. This Court finds, the factual background involved herein, Applicant No.1, Durga Madhab Dakua after passing +2 Science in the year 2004, passed B.Sc. Nursing conducted by the Sikhya 'O' Anusandhan University, Bhubaneswar on 9.9.2015 in a four years course duration. Similarly Applicant No.2, Soubhagyalaxmi Mohanty after +2 Science, passed B.Sc. Nursing, a four yours degree course, from Utkal University in October, 2015. While persecuting their studies in Post Basic Diploma in Psychiatric Nursing Course during the academic session, 2016-17 and continuing the said Course, an advertisement dated 11.5.2017 was Page 1 of 12 // 2 // issued by the S.C.B. Medical College & Hospital, Cuttack seeking applications for the post of Staff Nurse, vide Annexure-5. Both the Applicants applied for the said post. For the Applicants not being allowed to appear the interview, both of them filed the Original Application and sought for interim protection. On entertainment of the Original Application by way of interim protection, it appears, the Tribunal by order dated 18.7.2017 permitted the present Petitioners to appear in the interview but however their result was restricted to be declared and was directed to be kept in sealed cover. There is a development that during pendency of the case, this Court on perusal of the performance of the Petitioners by opening the sealed cover has already taken note that both Petitioner nos.1 & 2 have already been placed in the merit list at Serial Nos.6 & 2 respectively as finds place in the order of this Court dated 18.8.2021.
2. Ms.S.Mohapatra, learned counsel for the Petitioners in the above background taking to the pleadings attempted to satisfy through the advertisement at Annexure-5 on the aspect of eligibility for the purpose of making application. Taking this Court to the eligibility criteria, Ms.Mohapatra attempted to satisfy that for the disclosure of the educational qualification of the Petitioners, both of them clearly met the eligibility criteria prescribed therein. Taking this Court to the eligibility criteria specifically meant for the post Staff Nurses on contractual for the Mental Health Institute (Centre of Excellence in Mental Health) Page 2 of 12 // 3 // SCBMCH, Cuttack and reading through the eligibility criteria keeping in view the qualification obtained by the Petitioners, Ms.Mohapatra, learned counsel for the Petitioners attempted to demonstrate through the eligibility criteria and submitted that both the Petitioners already met required eligibility criteria. Taking to the provision from the Indian Nursing Council Act, 1947, particularly Section 10 and Clause-13 of Section 17 Part I, Ms.Mohapatra, learned counsel for the Petitioners attempted to satisfy that both the Petitioners have met the eligibility criteria required under the advertisement. It is in the above background of the matter, Ms.Mohapatra, learned counsel contended that there was no scope for keeping both the Petitioners away from the selection process and for they have already been found to be in the final select list keeping in view the interim direction of the Court authorizing both the Petitioners to appear in the interview. Ms.Mohapatra, learned counsel for the Petitioners, prayed this Court for issuing Mandamus for appointment of the Petitioners and passing appropriate orders.
To substantiate her submission, Ms.Mohapatra, learned counsel for the Petitioners took this Court to a recent decision of the Hon'ble Supreme Court in Puneet Sharma & others vrs. Himachal Pradesh State Electricity Board Ltd. & others : AIR 2021 SC 2221. Taking this Court to Paragraph-2 of the said decision involving the issue framed by the Hon'ble Supreme Court and further taking this Court to the disclosures in Paragraphs-3, 32 & 33 thereof claiming this decision para material applies Page 3 of 12 // 4 // to the case at hand, Ms.Mohapatra, learned counsel made an attempt to also have the legal support to the claim of the Petitioners.
3. Mr.H.K.Panigrahi, learned Additional Standing Counsel appearing for the Opposite Parties in his opposition without disputing to the claim of the Petitioners involving the recruitment process, the eligibility criteria prescribed therein for the post of Staff Nurse on contractual under Annexure-5, but however, disputing on the aspect of the eligibility criteria prescribed for the post in the Mental Health Institute involved therein, however in furtherance of the stand taken by Opposite Parties 1 & 2 took this Court to the Rule available for the purpose, vide Annexure-A/2 to the counter affidavit, i.e., Odisha Nursing Service (Methods of Recruitment and Conditions of Service) Rules, 2015 (in short, "the 2015 Rules") through Appendix at Page-79 of the Brief and reading through Column-4 of the same, dealing with minimum qualification for direct recruitment, contended that there being a minimum qualification prescribed in the 2015 Rules, the Petitioners having acquired higher qualification are rightly kept away from the zone of consideration. Then taking to have a legal support also through the decision in Puneet Sharma (supra) through Paragraphs-37 & 38 thereof, Mr.Panigrahi, learned Additional Standing Counsel for the State contended that this decision has no application to the case at hand. Mr.Panigrahi, learned Additional Standing Counsel however did not dispute to the prescription on the recognition of qualification through Section 10 of the Act, 1947 and also the provision at Section 17 therein taken support by the Page 4 of 12 // 5 // Petitioners. There is also no dispute to the contention of the Petitioners that in the meantime, the Authority has brought the amended Rule in 2019 accommodating the candidates having higher qualification for the selfsame recruitment but in future years. Mr.Panigrahi, learned Additional Standing Counsel for the Opposite Parties however in this context, opposed the contention of the learned counsel for the Petitioners on the premises that the amended Rule being brought in 2019 was not available to be applied involving the advertisement of the year 2017.
4. Considering the rival contentions of the Parties, for the undisputed facts, such as the Indian Nursing Council Act, 1947 through Section 10 prescribing recognised qualification and higher qualification, further input through Section 17 of the Act, 1947, the qualification of the Petitioners being recognised by the Orissa Medical Examination Board as appearing at Clause-13 of Section 17 therein, this Court observes, there remains no dispute that the qualification obtained by both the Petitioners is the recognised qualification. It is at this stage, taking into consideration the Odisha Nursing Service (Methods of Recruitment and conditions of Service) Rules, 2015 in vogue at the relevant point of time through the Appendix, vide Annexure-A/2, this Court finds the Rules prescribe minimum qualification required for direct recruitment for the post of Staff Nurse as follows :-
"Must have passed +2 Science Examination under Council of Higher Secondary Education, Odisha/equivalent and Diploma in General Nursing & Midwife Course from any of the 3(three) Medical College and Hospitals of the State/any other recognized Page 5 of 12 // 6 // private institutions duly approved by Indian Nursing Council and examination conducted by the Odisha Nursing Council."
It is taking into account the qualification criteria prescribed for Staff Nurse on contractual basis at Annexure-5, this Court finds, the eligibility criteria prescribed therein reads as follows :-
"Must have passed HSC/equivalent examination and +2 Science examination under Council of Higher Secondary Education, Odisha/Equivalent and Diploma in General Nursing & Midwife Course from any of the three (3) Medical College and Hospitals of the State/any other recognised private institutions duly approved by Indian Nursing Council and examination conducted by the Odisha Nursing Council. One percent extra mark of the total marks for each completed year of continuous service (from any govt. institution) subject to a maximum of fifteen percent which will be added to the marks secured by them for deciding the merit position."
At the same time, this Court also takes into consideration the eligibility criteria prescribed specifically involving the post of Staff Nurse for Mental Health Institute (SCB MCH, Cuttack), which reads as follows :-
"Must have passed HSC/equivalent examination and +2 Science examination under Council of Higher Secondary Education, Odisha/Equivalent and Diploma in General Nursing & Midwife Course from any of the three (3) Medical College and Hospitals of the State/any other recognized private instiutions duly approved by Indian Nursing Council and examination conducted by the Odisha Nursing Council. One per cent extra mark of the total marks of the total marks for each completed year of continuous service (from any Govt. institution) subject to a maximum of fifteen percent which will be added to the marks secured by them for deciding the merit position. Preference will be given to the Candidates those who have completed and Page 6 of 12 // 7 // continuing the Post Basic Diploma in Psychiatric Nursing Course."
5. Reading all these together, this Court here finds, for applying against the advertisement not only the candidates so involved required to have the minimum qualification but even there appears, there is preference declared to be given to the candidates those who have completed and continuing in the post of Basic Diploma in Psychiatric Nursing Course. This Court from the plea of the Parties remaining undisputed, finds, both the Petitioners very much meeting the eligibility criteria prescribed at both the places and even for their acquiring higher qualification, they were also deserved to be given preference. Taking into consideration the submission of Mr.Panigrahi, learned Additional Standing Counsel that for there is prescription of minimum qualification, candidates having the higher qualification have been rightly excluded, this Court observes, prescribing minimum qualification in absence of clear exclusion of candidature of the persons having higher qualification cannot stand on the way of the candidates like that of the Petitioners from applying against the advertisement. It is keeping this in view and the interim protection granted to the Petitioners, this Court finds, there has been a justified interim direction to permit the Petitioners to apply through the advertisement pending consideration of the dispute involved therein. It is looking to the observations of Page 7 of 12 // 8 // this Court and the claim and response of the Opposite Parties, entering into legal force behind it, this Court takes into account the claim of both the Parties through the decision in Puneet Sharma (supra). This Court here takes into consideration the factual aspects involved in the said decision finds, the Hon'ble Supreme Court framed the following question :-
"Whether a degree in Electrical Engineering/Electrical and Electronics Engineering is technically a higher qualification than a diploma in that discipline and, whether degree holders are eligible for appointment to the post of Junior Engineer (Electrical) under the relevant recruitment rules, is the issue that falls for decision in these appeals arising out of a common judgment of the Himachal Pradesh High Court. As is evident, this issue is not novel and has an almost endemic tendency requiring judicial attention, albeit in myriad and diverse contexts ?"
6. Then coming to the factual aspect therein, this Court finds, in Paragraph-3 of the said decision, the Hon'ble Supreme Court recorded the factual aspect involved therein. It is for the above framing of issues and factual background also involving in the case at hand, ultimately in Paragraphs-32, 33 & 36, the Hon'ble Supreme Court came to observe as follows :-
"32. The latter (2) conclusively establishes that what the rule making authority undoubtedly had in mind was that degree holders too could compete for the position of JEs as individuals holding equivalent or higher qualifications. If such interpretation were not given, there would be no meaning in the 5% sub-quota set apart for those who were degree holders before joining as Junior Engineers - in terms of the recruitment rules as existing.Page 8 of 12
// 9 //
33. The court's opinion is fortified by the latest amendment brought about on 03.06.2020. This clarifies beyond doubt that even for the post of Junior Engineers, those individuals holding higher qualifications are eligible to compete. In the opinion of this Court, though the amending rules were brought into force prospectively, nevertheless, being clarificatory, they apply to the recruitment that is the subject matter of the present controversy. Such a position (i.e. clarificatory amendments operative retroactively, despite their enforcement prospectively) has been held in several previous judgments of this court. In Zile Singh v. State of Haryana15 this Court examined the various authorities on statutory interpretation and concluded: (SCC pp. 8-9, paras 13-14) "13. It is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have a retrospective operation. But the Rule in general is applicable where the object of the statute is to affect vested rights or to impose new burdens or to impair existing obligations. Unless there are words in the statute sufficient to show the intention of the legislature to affect existing rights, it is deemed to be prospective only--'nova constitution futuris formam imponere debet non praeteritis'--a new law ought to regulate what is to follow, not the past. (See Principles of Statutory Interpretation by Justice G.P. Singh, 9th Edn., 2004 at page 438.) It is not necessary that an express provision be made to make a statute retrospective and the presumption against retrospectivity may be rebutted by necessary implication especially in a case where the new law is made to cure an acknowledged evil for the benefit of the community as a whole (ibid., page 440).
14. The presumption against retrospective operation is not applicable to declaratory statutes.... In determining, therefore, the nature of the Act, regard must be had to the substance rather than to the form. If a new Act is 'to explain' an earlier Act, it would be without object unless construed retrospectively. An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act. It is well settled that if a statute is curative or merely declaratory of the previous law retrospective operation is generally intended.... An amending Act may be purely declaratory to clear a meaning of a provision of the principal Act which was already implicit. A clarificatory amendment of this nature will have retrospective effect (ibid., pp. 468-69)."
36. It would also be relevant to notice that in the appeal, it has been specifically averred that the HPSEB has been making contractual appointments from amongst degree holders in the cadre of Junior Engineers, and that an order was issued upon the recommendation of the Screening Committee, which through its meeting held on Page 9 of 12 // 10 // 11.04.2018 had cleared the regularization of 28 such candidates. These degree holders are equivalent to Junior Engineers, and had been working for periods ranging between 4 to 6 years. A copy of that order has been produced as Annexure P-10 in the Special Leave Petition."
Above decision supports the case of the Petitioners here not only in the matter of possibility of consideration of persons having higher qualification for the post involved but also in consideration of the subsequent development by way of amendment of the Rules, as involved in the case at hand. It is here taking into consideration the stand of the State-Opposite Parties through Paragraphs-37 & 38, this Court finds, for the factual differences involving the cases referred to therein by the Hon'ble Supreme Court, the observation through Paragraphs-37 & 38 have no application to the case at hand. It is for the factual support to the case of the Petitioners through the observations of this Court herein above, the legal support running through the decision of the Hon'ble Supreme Court in Puneet Sharma (supra), this Court finds, the Writ Petition must succeed.
7. It is at this stage of the matter, this Court also takes cognizance of the plea of both sides that pending consideration, the Department has already brought amendment to the Rules taken note herein above in the year 2019 taking out the restrictions in the matter of prescription of minimum qualification in the erstwhile Rules. This Court here observes, finding complications in the matter of Page 10 of 12 // 11 // consideration of the candidature of this nature, State taking a positive note on its own has come forward with amendment in 2019 thereby no further restricting to consider the candidatures of persons having higher qualification.
8. Thus while allowing the Writ Petition, keeping in view both the Petitioners having been allowed to participate in the interview by virtue of the interim direction, further having been selected, their names having been already panelled in the select list, further keeping in view the sealed cover already opened and the development therein recorded in favour of the Petitioners, this Court directs the Superintendent, S.C.B. Medical College & Hospital, Cuttack, O.P.2, to treat both the Petitioners in order of their merit position in the select list along with other selected candidates and place them accordingly. This Court makes it clear that for illegally keeping the Petitioners away from the selection purview for no reason of the Petitioners and appointment as well, both the Petitioners will be deemed to be continuing as against the Posts of Staff Nurse on contractual basis from the date other candidates involving very same advertisement got selected and placed, further for both the Petitioners having not worked all through, this Court while declaring the benefit so far it relates to wage to be treated notionally, clarifies that the period spent in the meantime shall however be taken into Page 11 of 12 // 12 // account for any other service benefit granted to similarly situated candidates from time to time. Opposite Party No.2 is also directed to work out the direction herein above by completing the entire exercise within a period of two weeks from the date of receipt of this judgment.
9. Writ Petition succeeds but however no cost.
(Biswanath Rath) Judge Orissa High Court, Cuttack.
The 27th day of September, 2021/MKR,A.R.-cum-Sr.Secy. Page 12 of 12