Uttarakhand High Court
Smt Santosh Chandra And Another vs State Of Uttarakhand And Others on 7 July, 2017
Author: Alok Singh
Bench: K.M. Joseph, Alok Singh
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Special Appeal No. 156 of 2017
Smt. Santosh Chandra & another. ............ Appellants
Versus
State of Uttarakhand & others. .............. Respondents
Special Appeal No. 143 of 2017
Archana Devi. ............ Appellant
Versus
State of Uttarakhand & others. .............. Respondents
Special Appeal No. 150 of 2017
Nisha Devi. ............ Appellant
Versus
State of Uttarakhand & others. .............. Respondents
Special Appeal No. 185 of 2017
With
Delay Condonation Application No. 5167 of 2017
Application for Leave to Appeal No. 5169 of 2017
Exemption Application No. 5168 of 2017
Siwangini Devi & others. ............ Appellants
Versus
State of Uttarakhand & others. .............. Respondents
Special Appeal No. 197 of 2017
With
Delay Condonation Application No. 5573 of 2017
Application for Leave to Appeal No. 5575 of 2017
Km. Manju & others. ............ Appellants
Versus
State of Uttarakhand & others. .............. Respondents
Special Appeal No. 198 of 2017
With
Delay Condonation Application No. 5584 of 2017
Application for Leave to Appeal No. 5586 of 2017
Exemption Application No. 5585 of 2017
Shikha & others. ............ Appellants
Versus
State of Uttarakhand & others. .............. Respondents
Special Appeal No. 199 of 2017
With
Delay Condonation Application No. 5599 of 2017
Application for Leave to Appeal No. of 2017
Exemption Application No. 5600 of 2017
Smt. Visheshwari & others. ............ Appellants
Versus
State of Uttarakhand & others. .............. Respondents
2
Special Appeal No. 201 of 2017
With
Delay Condonation Application No. 5604 of 2017
Application for Leave to Appeal No. 5608 of 2017
Exemption Application No. 5607 of 2017
Km. Rachna & others. ............ Appellants
Versus
State of Uttarakhand & others. .............. Respondents
Special Appeal No. 200 of 2017
With
Delay Condonation Application No. 5619 of 2017
Application for Leave to Appeal No. 5621 of 2017
Exemption Application No. 5620 of 2017
Sangeeta Arya & others. ............ Appellants
Versus
State of Uttarakhand & others. .............. Respondents
Special Appeal No. 215 of 2017
With
Delay Condonation Application No. 5664 of 2017
Application for Leave to Appeal No. 5666 of 2017
Exemption Application No. 5665 of 2017
Km. Ritu Kainthola & others. ............ Appellants
Versus
State of Uttarakhand & others. .............. Respondents
Special Appeal No. 217 of 2017
With
Delay Condonation Application No. 5677 of 2017
Application for Leave to Appeal No. 5679 of 2017
Exemption Application No. 5678 of 2017
Km. Ambika & others. ............ Appellants
Versus
State of Uttarakhand & others. .............. Respondents
Special Appeal No. 218 of 2017
Asha Rani & others. ............ Appellants
Versus
State of Uttarakhand & others. .............. Respondents
Special Appeal No. 224 of 2017
With
Delay Condonation Application No. 5781 of 2017
Application for Leave to Appeal No. 5783 of 2017
Exemption Application No. 5782 of 2017
Smt. Poonam Kala & another. ............ Appellants
Versus
State of Uttarakhand & others. .............. Respondents
3
Special Appeal No. 245 of 2017
With
Delay Condonation Application No. 5852 of 2017
Application for Leave to Appeal No. 5854 of 2017
Exemption Application No. 5853 of 2017
Pooja & others. ............ Appellants
Versus
State of Uttarakhand & others. .............. Respondents
Special Appeal No. 251 of 2017
With
Delay Condonation Application No. 5926 of 2017
Application for Leave to Appeal No. 5927 of 2017
Smt. Raj Kumari & another. ............ Appellants
Versus
State of Uttarakhand & others. .............. Respondents
Special Appeal No. 252 of 2017
With
Delay Condonation Application No. 5945 of 2017
Application for Leave to Appeal No. 5947 of 2017
Exemption Application No. 5946 of 2017
Smt. Urmila Panwar & others. ............ Appellants
Versus
State of Uttarakhand & others. .............. Respondents
Special Appeal No. 255 of 2017
With
Delay Condonation Application No. 5966 of 2017
Application for Leave to Appeal No. 5967 of 2017
Smt. Reeta & others. ............ Appellants
Versus
State of Uttarakhand & others. .............. Respondents
Special Appeal No. 261 of 2017
With
Delay Condonation Application No. 6100 of 2017
Application for Leave to Appeal No. 6102 of 2017
Exemption Application No. 6101 of 2017
Smt. Munni Bisht & others. ............ Appellants
Versus
State of Uttarakhand & others. .............. Respondents
Special Appeal No. 272 of 2017
With
Delay Condonation Application No. 6209 of 2017
Application for Leave to Appeal No. 6210 of 2017
Pratibha Saini. ............ Appellant
Versus
State of Uttarakhand & others. .............. Respondents
4
Special Appeal No. 273 of 2017
With
Delay Condonation Application No. 6251 of 2017
Application for Leave to Appeal No. 6253 of 2017
Exemption Application No. 6252 of 2017
Smt. Kheema & others. ............ Appellants
Versus
State of Uttarakhand & others. .............. Respondents
Special Appeal No. 283 of 2017
With
Delay Condonation Application No. 6322 of 2017
Application for Leave to Appeal No. 6323 of 2017
Munni Arya & others. ............ Appellants
Versus
State of Uttarakhand & others. .............. Respondents
Special Appeal No. 300 of 2017
With
Delay Condonation Application No. 6530 of 2017
Application for Leave to Appeal No. 6531 of 2017
Madhu Pal & another. ............ Appellants
Versus
State of Uttarakhand & others. .............. Respondents
Special Appeal No. 353 of 2017
With
Delay Condonation Application No. 6898 of 2017
Smt. Sarita Bisht & another. ............ Appellants
Versus
State of Uttarakhand & others. .............. Respondents
Writ Petition (S/S) No. 1577 of 2011
Gayatri Goswami & others. ............ Petitioners
Versus
State of Uttarakhand & others. .............. Respondents
Writ Petition (S/S) No. 1481 of 2017
Kavita Tewari. ............ Petitioner
Versus
State of Uttarakhand & others. .............. Respondents
Counsel for the appellants / writ petitioners:
Mr. Rakesh Thapliyal, Mr. Subhash Upadhyaya, Mr. Shobhit Saharia, Mr. B.M.
Pingal, Mr. Amar Shukla, Mr. Prabhat Bohara and Mr. Shailendra Nauriyal.
Counsel for the respondents:
Mr. Paresh Tripathi, Chief Standing Counsel, with Mr. Rajeev Singh Bisht and Mr.
H.M. Bhatia, Brief Holders for the State of Uttarakhand.
Mr. Vinay Kumar, Advocate for the private respondents and for the appellants in
Special Appeal No. 353 of 2017.
5
JUDGMENT
Coram: Hon'ble K.M. Joseph, C.J.
Hon'ble Alok Singh, J.
Dated: 7th July, 2017 K.M. JOSEPH, C.J. (Oral) As common issues are raised in these appeals and writ petitions, they are being disposed of by this common judgment.
2. In some of the appeals, there is delay. Accordingly, Delay Condonation Applications have been filed. Heard the learned counsel for the parties on the delay. In the circumstances, the delay will stand condoned and the Delay Condonation Applications will stand allowed.
3. Most of the appeals have been filed along with Applications seeking leave. Leave granted. The Applications will stand disposed of.
4. Special Appeal No. 150 of 2017 has been filed by the writ petitioner in Writ Petition (S/S) No. 2132 of 2016. Special Appeal No. 353 of 2017 has been preferred by the writ petitioners in Writ Petition (S/S) No. 648 of 2016. All the other appeals have been filed with leave by persons, who were not parties before the learned Single Judge.
5. The bone of contention relates to the right to be selected and appointed to the post of Health Worker (Female). Writ Petition (S/S) No. 647 of 2016, which we treat as the leading case, was filed seeking the following reliefs:
"(i) Issue a writ, order or direction in the nature of certiorari calling for the records and quashing the Clause-3(A) of the impugned Advertisement No. 3 Pa/Pa.Ka./Swa.Karya./73/10 issued by the Director General, Medical Health and Family Welfare, Uttarakhand, inasmuch as the same are contrary to amended Rule 8 the relevant Service Rules 1997, which provides that after the enforcement of the amended Rules, the candidates having Intermediate in Science Stream are only 6 eligible for appointment as Basic Health Worker (Female) / ANM.
(ii) Issue a writ, order or direction in the nature of mandamus directing the respondents to conclude the selection on the post of Basic Health Worker (Female) / ANM as advertised by Advertisement No. 3 Pa/Pa.Ka./Swa.Karya./73/10 issued by the Director General, Medical Health and Family Welfare, Uttarakhand, as per the provisions of the relevant Service Rules of 1997 as amended in the year 1998.
(iii) Issue a writ, order or direction in the nature of mandamus directing the respondents to issue appointment letters to the petitioners on the post of Auxiliary Nurse-Midwives / Basic Health Worker (Female) in terms of the provisions of relevant Service Rules and the communications issued by the Chief Medical Officer, Tehri Garhwal suggesting that the petitioners will be given appointment after completion of training of the Basic Health Worker (Female) / ANM."
6. The issue relates to the title to be appointed as Health Worker (Female). The learned Single Judge heard Writ Petition (S/S) No. 647 of 2016 along with six other writ petitions and pronounced a common judgment.
7. An Advertisement dated 15.03.2016 was issued by the Director General, Medical Health and Family Welfare, Government of Uttarakhand, calling for applications from eligible persons for appointment to the posts of Health Worker (Female). The writ petitioners and all the appellants applied pursuant to the same. The writ petitioners approached the Court projecting the complaint that, under the statutory Rules governing the matter, for being selected for training for the Auxiliary Nurse and Midwives Course (hereinafter referred to as the "ANM Course"), which is treated as a qualification under the Rules, the person must have done Intermediate in Science subjects. A further complaint was raised in Writ Petition (S/S) No. 647 of 2016 that the petitioners therein had applied pursuant to an earlier Advertisement issued district-wise and they had been selected for the training and, in the subsequent document produced in the writ petition, it is stated that, on completing training, they will be offered appointment. So, the further contention taken in the said writ petition was that, having been selected for training on the basis that they would secure appointment and as the 7 issue of calling for training itself is intertwined with the number of vacancies as per the mandate of the Rules itself, the issuance of the impugned Advertisement dated 15.03.2016, calling for applications from all, defeats the rights of the petitioners to be selected on priority basis.
8. The learned Single Judge, however, proceeded to deal with the argument that the Advertisement is ultra-vires the statutory Rules, insofar as the Rules mandate that only the persons, who have done Intermediate in Science subjects, could be considered for the post of Health Worker (Female), whereas the Advertisement seems to provide otherwise. The learned Single Judge declared that the qualification of Intermediate in Arts is illegal and directed that the selection will be limited to persons, who had passed Intermediate in Science.
9. The appeals filed with leave are preferred by those candidates, who had applied pursuant to the impugned Advertisement and who had done Intermediate in Arts subjects. As already noted, Special Appeal No. 150 of 2017 is filed by the writ petitioner in Writ Petition (S/S) No. 2132 of 2016, who had also sought a direction to consider her candidature, as she had passed Intermediate in Arts subjects.
10. We have heard Mr. Rakesh Thapliyal, Mr. Subhash Upadhyaya, Mr. B.M. Pingal, Mr. Amar Shukla and Mr. Prabhat Bohara, learned counsel appearing for the appellants; besides Mr. Shobhit Saharia, learned counsel appearing for the petitioners in Writ Petition (S/S) No. 1577 of 2011 and Mr. Prabhat Bohara, learned counsel appearing for the petitioner in Writ Petition (S/S) No. 1481 of 2017. The State is represented by Mr. Paresh Tripathi, learned Chief Standing Counsel. We also heard Mr. Vinay Kumar, learned counsel appearing on behalf of the writ petitioners in Writ Petition (S/S) No. 647 of 2016 and who has also filed Special Appeal No. 353 of 2017.
11. Before we deal with the arguments, it is necessary to set out the statutory background. The earliest statute to notice is The Indian Nursing 8 Council Act, 1947 (hereinafter referred to as the "1947 Act"). This is a pre-constitutional statute, which, apparently, has been continued under Article 372 of the Constitution. The statement of objects and reasons reads as follows:
"Provincial Nursing Councils have been established in all Provinces and maintain registers of qualified nurses, health visitors and midwives. Increasing difficulties have been experienced by the nursing profession and by employing authorities owing to the diversity in the standards of preliminary education of candidates entering training schools of nursing, the varying standards of training and examination for nursing certificates and the lack of inter provincial reciprocity in the registration of nurses. To remedy these difficulties it is proposed to enact legislation for the purpose of setting up an Indian Nursing Council which will prescribe uniform minimum standards of education and training for nurses, midwives and health visitors, supervise examinations, and maintain a schedule of qualifications recognised for registration throughout India. To avoid delay an Ordinance was passed in August 1947 for this purpose. The Ordinance will be repealed by this Act."
12. The statute has been amended after the Constitution came into force; but, we need not be detained by the same. We need only refer to certain provisions, as it may be necessary to deal with the contentions. The statute contemplates composition of the Council. Section 10 deals with recognition of qualifications. Being relevant, we extract the same as under:
"10. Recognition of qualifications. - (1) For the purposes of this Act, the qualifications included in Part I of the Schedule shall be recognised qualifications, and the qualifications included in Part II of the Schedule shall be recognised higher qualifications.
(2) Any authority within the States which, being recognised by the State Government in consultation with the State Council, if any, for the purpose of granting any qualification, grants a qualification in general nursing, midwifery, auxiliary nursing midwifery, health visiting or public health nursing, not included in the Schedule may apply to the Council to have such qualification recognised, and the Council may declare that such qualification, or such qualification only when granted after a specified date, shall be a recognized qualification for the purposes of this Act.
(3) The Council may enter into negotiations with any authority in any territory of India to which this Act does not extend or foreign country which by the law of such territory or country is 9 entrusted with the maintenance of a register of nurses, midwives or health visitors; for the settling of a scheme of reciprocity for the recognition of qualifications, and in pursuance of any such scheme the Council may declare that a qualification granted by any authority in any such territory or country, or such qualification only when granted after a specified date, shall be a recognised qualification for the purposes of this Act:
Provided that no declaration shall be made under this sub- section in respect of any qualification unless by the law and practice of the foreign country in which the qualification is granted persons domiciled or originating in India and holding qualifications recognized under this Act are permitted to enter and practice the nursing profession in that country:
Provided further that-
(i) any reciprocal arrangements subsisting at the date of the commencement of this Act between a State Council and any authority outside India for the recognition of qualifications shall, unless the Council decides otherwise, continue in force, and
(ii) any qualification granted by an authority in a territory of India to which this Act did not extend at the date of its commencement, and recognised on the said date by the State Council of a State to which this Act then extended, shall continue to be a recognised qualification for the purpose of registration in that State.
(4) The provisions of sub-sections (2) and (3) and of sections 14 and 15 shall apply mutatis mutandis to the declaration by the Council of a qualification granted in respect of post-
certificate nursing training as a recognised higher qualification."
13. Section 11 deals with the effect of recognition. Being apposite, we refer to the same as under:
"11. Effect of recognition. - (1) Notwithstanding anything contained in any other law,-
(a) any recognised qualification shall be a sufficient qualification for enrollment in any State register;
(b) no person shall, after the date of the commencement of this 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 recognised qualification:
Provided that any person already enrolled in any State register before the said date may continue to be so enrolled notwithstanding that he or she may not hold a recognised qualification:
Provided further that any person who was immediately before the said date entitled to be enrolled 10 in any State register but was not so enrolled shall, on application made in this behalf before the expiry of two years from the said date be entitled to be enrolled in that register;
(c) any person holding a recognised higher qualification shall be entitled to have the qualification entered as a supplementary qualification in any State register in which he or she is enrolled, and after the said date no person shall be entitled to have entered as a supplementary qualification in any State register any qualification which is not a recognised higher qualification.
(2) Notwithstanding anything contained in clause (b) of sub-section (1)-
(a) a citizen of India holding a qualification which entitles him or her to be registered with any Council of Nursing or Midwifery (by whatever name called) in any foreign country, may, with the approval of the Council, be enrolled in any State register; and where approval has been accorded by the Council in respect of such qualification in one case, the approval of the Council for enrollment in a State register in the case of any other citizen of India holding the same qualification shall not be necessary;
(b) a person not being a citizen of India who is employed as a nurse, midwife, auxiliary nurse-midwife, teacher or administrator in any hospital or institution situated in any State for purposes of teaching, research or charitable work may, with the approval of the President of the Council, be enrolled temporarily in the State register for such period as may be specified in this behalf in the order issued by the said President:
Provided that practice by such person shall be limited to the hospital or institution to which he or she is attached."
14. Section 13 deals with inspections. Section 14 deals with withdrawal of recognition. Section 15-A, which was inserted w.e.f. 01.12.1958, deals with Indian Nurses Register. The same reads as follows:
"15-A. Indian Nurses Register. - (1) The Council shall cause to be maintained in the prescribed manner a register of nurses, midwives, auxiliary nurse midwives and health visitors to be known as the Indian Nurses Register, which shall contain the names of all persons who are for the time being enrolled on any State register.11
(2) It shall be the duty of the Secretary of the Council to keep the Indian Nurses Register in accordance with the provisions of this Act, and from time to time, to revise the register and publish it in the Gazette of India and in such other manner as may be prescribed.
(3) Such register shall be deemed to be a public document within the meaning of the Indian Evidence Act, 1872, and may be proved by a copy published in the Gazette of India."
15. Section 16 deals with the power to make regulations. We are concerned in this case with clauses (g), (h) & (i) of sub-section (1). The same read as follows:
"16. Power to make regulations. - (1) The Council may make regulations not inconsistent with this Act generally to carry out the provisions of this Act, and in particular and without prejudice to the generality of the foregoing powers, such regulations may provide for-
..................
(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 courses of training as aforesaid;
(i) prescribing the standards of examination and other requirements to be satisfied to secure for qualifications recognition under this Act;"
16. The next statute to refer to is The United Provinces Nurses, Midwives, Assistant Midwives, Auxiliary Nurse-Midwives and Health Visitors Registration Act, 1934 (hereinafter referred to as the "1934 Act"). It also deals with the constitution of the Council, which apparently is the State Council. It is to be noticed that the 1934 Act is applicable to the State of Uttarakhand by virtue of the provisions in the U.P. Reorganisation Act, 2000.
17. Time is now ripe for us to refer to the statutory rules in question. The statutory rules were made, for the first time, in the year 1997 by the Uttar Pradesh Government known as The Uttar Pradesh Department of Medical Health and Family Welfare Health Worker and Health Supervisor (Male and Female) Service Rules, 1997 (hereinafter referred to 12 as the "1997 Rules"). The relevant Rules to notice are Rules 5, 8, 14 &
15. The English translation of the same, which is made available to us by the learned Chief Standing Counsel, reads as follows:
"Rule 5. Source of recruitment - Recruitment to the various categories of posts in the Service shall be made from the following sources:
(1) Health Worker (Male) - By Direct Recruitment through the Commission from amongst such male candidates who have successfully completed one year basic health worker training course conducted by departmental divisional training centers (previously known as Regional Health and Family Welfare Training Centres) of the State:
(2) Health Worker (Female) - By Direct Recruitment through the Commission from amongst such female candidates who have successfully completed one year and a half year basic mahila health worker training course (including six months training related to deliveries) conducted by Uttar Pradesh Nurses and Midwives Council Lucknow and who are duly registered in the Uttar Pradesh Nurses and Midwives Council, Lucknow.
Rule 8. Academic qualification. - (i) A candidate for Direct Recruitment to the post of Health Worker (Male) must have successfully completed prescribed training course for Basic Health Worker (Male) conducted by the Departmental Divisional Training Centres (previously known as Regional Health and Family Welfare Training Centres) of the State of Uttar Pradesh.
(ii) A candidate for Direct Recruitment to the post of Health Worker (Female) must have successfully completed prescribed training course for Basic Health Worker (Female) conducted by the Uttar Pradesh Nurses and Midwives Council, Lucknow and is also duly registered in the Uttar Pradesh Nurses and Midwives Council, Lucknow.
Provided that after enforcement of Uttar Pradesh Medical Health and Family Welfare Department Health Workers and Health Supervisors (Male & Female) Service (First Amendment) Rules 1998, it is necessary that for selection for such training the candidate must pass the Intermediate Examination with Science Subject of Secondary Education Board, U.P. or any examination equivalent thereto.
Rule 14. (1) After enforcement of Uttar Pradesh Medical Health and Family Welfare Department Health Workers and Health Supervisors (Male & Female) Service (First Amendment) Rules 1998, the process of selection of candidates for training as prescribed under Rule 8, as amended from time to time (Uttar Pradesh Outside the Purview of Public Service Commission) Group 'C' shall be made under the provisions provided under Direct 13 Recruitment Rules, 1998. The number of candidates selected for training would be as per number of vacancies.
(2) Sub Rule (1) at the time of making selection under Sub Section (1) the provisions of reservation shall be followed as prescribed in Rule 6.
In the aforesaid rules in place of existing Rule 15 mentioned below in Column (1) shall be replaced with the rule mentioned in Column 2.
Rule 15(1) Procedure for Direct Recruitment through Selection Committee.
For appointment on direct recruitment on the post of Health Worker (Male) and Health Worker (Female), the application would be invited vide advertisement issued by the Director General from such candidates who fulfill the requisite qualifications laid down in Rule 5 & 8."
18. It is in the setting-up of these statutory provisions that we must now refer to the contentions raised by the parties.
19. Mr. Prabhat Bohara, learned counsel appearing on behalf of the appellants and also the writ petitioner, who challenged the Rule relating to the qualification of Intermediate in Science, who had done Intermediate in Arts, would submit that the appellants have passed Intermediate in Arts. They have undergone the same syllabus and training as the candidates, who had passed Intermediate in Science. He would submit that, instead of insisting that the person to be qualified for being admitted to the ANM Course must have done Intermediate in Science, the State could have prescribed for the principle of inter se merit among the candidates. He would submit that there is no intelligible differentia to distinguish between the students who have done Intermediate in Arts and the students who have done Intermediate in Science, nor is there any rational nexus with the object sought to be achieved. In this regard, he drew support from Dr. Subramanian Swamy vs. Director, Central Bureau of Investigation & another, reported in AIR 2014 SC 2140. He would also submit that the classification appears to be arbitrary. In this regard, he drew support from State of West Bengal vs. Anwar Ali Sarkar & another, reported in AIR 1952 SC 75. He would further submit that the purpose of every service rule is to provide equal opportunity to all. It is 14 submitted that the result of countenancing the statutory rule contained in the proviso limiting the persons, who are qualified to undergo the ANM Course, to those, who have done Intermediate in Science, is to interfere with the right every Indian has to work anywhere. The result of the Rule is that it does not permit a person to work in the State of Uttarakhand as a Health Worker for the mere reason that the person has done Intermediate in Arts, it is submitted. Appellants would also submit that there is a legitimate expectation having completed the course of ANM. Learned counsel would also point out that, having regard to the provisions of the 1947 Act, which is a Central enactment, which is traceable to Entry 66 of List I of the Seventh Schedule, for the purpose of attaining uniformity in standards of education, when the Centre has prescribed a uniform norm for getting admitted to the ANM Course, it would not be legal for the State to prescribe a different yardstick and exclude the appellants, who conform to the requirements prescribed in the 1947 Act. He would submit that the Rule is, therefore, repugnant to the provisions contained in the central enactment. He would submit that Regulations have been made under Section 16 of the 1947 Act and the prescription confining the eligibility to those, who have done Intermediate in Science, is ultra vires being repugnant. He also invoked the doctrine of occupied field, in the sense that, since the Central Legislature has provided for the Regulations made under the 1947 Act, which, in turn, is traceable to Entry 66 of List I, the principle, which has been enunciated in the decision of the Apex Court in State of T.N. & another vs. Adhiyaman Educational & Research Institute & others, reported in (1995) 4 SCC 104 would apply. He would further point out that the State has no authority to make the Rules under Article 309 and, in this regard, he invoked the law laid down by the Apex Court in State of Punjab & others vs. Kailash Nath, reported in (1989) 1 SCC 321. He further complains that there is no whisper in the impugned Advertisement that the 1998 Rules would apply. He would also invoke Articles 15(2) and 16(2) in regard to the Advertisement pursuant to which the petitioners in Writ Petition (S/S) No. 647 of 2016 applied (the case of the writ petitioners is that they had applied pursuant to the said Advertisement and selected for training on the 15 said basis). The Advertisement appears to provide as a condition for successfully applying that the candidate should be a resident of a particular local area (a district). This, apparently, is the basis for invoking Articles 15(2) and 16(2). Next, he would submit that, even taking the Rule as it is, it contemplates training being imparted by the Uttar Pradesh Nurses and Midwives Council. He would point out that there is no training being imparted by the Uttar Pradesh Nurses and Midwives Council. Training is being imparted by some other body. Since the Rule must be taken as it is, then it breaks down and it is not possible to give life to it. Appellants also have a case that the appellants were not made parties in the writ petition. Still further, learned counsel would point out that appellant No. 1 in Special Appeal No. 156 of 2017 had undergone ANM Course prior to 1998 (the date of introduction of the controversial proviso in Rule 8). He would, no doubt, submit that appellant No. 1 underwent the ANM Course from the State of Punjab, however.
20. Mr. Subhash Upadhyaya, learned counsel for the appellants in one of the cases, would submit that some of the appellants had undergone ANM Course in the training institutes in the State of Uttarakhand and some of the others had obtained ANM Certificates from other States. He would submit that the Institutes invited applications and, though they were having only Intermediate in Arts, they were enrolled for the Course, they successfully underwent the Course; then how is it possible for the State to discriminate. He would submit that, after having imparted training, appointment cannot be denied to the appellants. He would further point out that, in the adoption order purported to be issued under Section 87 of the U.P. Reorganisation Act, 2000, the amendment by which the proviso was inserted on 10.09.1998 is not expressly referred. He would further submit that the writ petition, itself, is liable to be dismissed for the reason that the petitioners therein had applied and he would submit that, thereafter, it does not lie in their mouth to challenge the procedure. In this regard, he drew our attention to the judgment of this Court in State of Uttarakhand & another vs. Keshavanand Jhaldiyal, reported in 2014 (2) UD 485. Mr. Subhash Upadhyaya would 16 also adopt the arguments relating to repugnancy. He would submit that, even going by the Advertisement, it prescribes that the candidates must possess the qualifications prescribed by the Indian Nursing Council, which the appellants possess and, therefore, there cannot be any basis not to consider the applications only for the reason that they have passed Intermediate in Arts.
21. Mr. B.M. Pingal and Mr. Amar Shukla, learned counsel for the appellants in some of the appeals, also adopted the arguments and submitted that Intermediate in Arts suffices.
22. Mr. Shobhit Saharia, learned counsel, who appears for the writ petitioners in Writ Petition (S/S) No. 1577 of 2011, which writ petition was pending consideration before the learned Single Judge and which was called to this Court on the learned counsel pointing out that the matter is connected, would submit that the petitioners in the said writ petition are working as ANM Workers on contract basis. He would also submit that the State Rule is repugnant and, therefore, it cannot be given effect to, as was done by the learned Single Judge. He would also emphasise that the Rule, in its present incarnation and requiring the imparting of training by the Uttar Pradesh Nurses and Midwives Council, is incapable of being achieved. In fact, he points out that neither in the State of Uttar Pradesh, nor in Uttarakhand, is training being imparted by the Nurses and Midwives Council. He would submit that number of employees have already been appointed on the basis of their possessing Intermediate in Arts. In fact, he would submit that, originally, the qualification fixed by the Indian Nursing Council was "passed in the 10th standard". He would also submit that the qualification fixed by the State, namely, Intermediate in Science cannot be treated as a higher qualification.
23. Per contra, Mr. Paresh Tripathi, learned Chief Standing Counsel for the State, would support the judgment. He would submit that the Rules have been made in exercise of Legislative power conferred on the State 17 under the Constitution. The Rules can be properly traced to Entry 41 of List II of the Seventh Schedule. The same reads as follows:
"41. State public services; State Public Service Commission."
24. He would submit that there is a distinction to be borne in mind when the court is appreciating the argument based on doctrine of repugnancy and that is that it must be discerned with reference to the exact source of Legislative power and the Entry to which the Legislation can be traced. Here, the State is only prescribing the method of recruitment of the persons whom it wishes to employ in regard to the posts of Health Worker (Female). Having regard to the nature of the employment, if the State felt that a person must have done Intermediate in Science for being admitted to the Course, which, in turn, would entitle her to be considered for appointment as Health Worker (Female), then it cannot be faulted. As regards the argument that the adoption order does not specifically refer to the amendment dated 10.09.1998, he would submit that a proper reading and appreciation of the adoption order would show that the amendment on 10.09.1998 was, indeed, covered by the adoption order and, therefore, was a law applicable in the State of Uttarakhand also.
25. Mr. Vinay Kumar, learned counsel for the writ petitioners in Writ Petition (S/S) No. 647 of 2016, would also support the judgment. In fact, he is also appearing for the appellants in Special Appeal No. 353 of 2017, who are writ petitioners in Writ Petition (S/S) No. 648 of 2016. He has a complaint against the judgment passed by the learned Single Judge, which is as follows:
He would point out that, apart from the fact that, under the Advertisement, the applicants, who did not have background in Science at the level of Intermediate education, were being wrongly considered; he had also a case that, since the writ petitioners / appellants had been selected for training, though district-wise, pursuant to a proper 18 Advertisement and they had successfully completed the training and they had been assured of employment and having regard to Rule 14 of the Rules, they should have been considered for appointment and it is only after providing for them that anybody else could have been considered. He would submit that the learned Single Judge has not considered this aspect while rendering the judgment. To that extent, he faults the judgment passed by the learned Single Judge.
26. Mr. Vinay Kumar would raise another preliminary objection, in which preliminary objection, learned Chief Standing Counsel also joined and that is as follows:
There were seven writ petitions, which were jointly considered by the learned Single Judge. In the appeals filed with leave by the candidates, who were having Intermediate in Arts, though they had called in question the common judgment and have prayed for setting aside of the judgment in all the writ petitions, conspicuous by its absence on the party array are the writ petitioners in all the writ petitions, except the writ petitioners in Writ Petition (S/S) No. 647 of 2016. This would necessitate the dismissal of the appeals for the reason that the appeals cannot possibly be allowed in the absence of the necessary parties on the party array.
27. First, let us understand the true purport of the subordinate Legislation in the form of statutory Rules governing the recruitment to the posts of Health Worker (Female). As already noticed, the Rules were originally made in the year 1997. In the Rules made in 1997 and in the subsequent amendment, running as a golden thread, we would notice is the requirement that, to be selected by direct recruitment to the post of Health Worker (Female), the person must have undergone ANM Course, which is said to last for 1 ½ years (see Rule 5). Training is to be imparted by the Uttar Pradesh Nurses and Midwives Council. It is to be noticed that this Council is a Council, which has been created under the 1934 Act. We must, at the very beginning, clear a preliminary ground, which has been raised. That relates to the employment of the words Uttar Pradesh 19 Nurses and Midwives Council. Section 87 of the U.P. Reorganisation Act, 2000 reads as follows:
"87. Power to adapt laws. - For the purpose of facilitating the application in relation to the State of Uttar Pradesh or Uttaranchal of any law made before the appointed day, the appropriate Government may, before the expiration of two years from that day, by order, make such adaptations and modifications of the law, whether by way of repeal or amendment, as may be necessary or expedient, and thereupon every such law shall have effect subject to the adaptations and modifications so made until altered, repealed or amended by a competent Legislature or other competent authority."
28. Acting on the basis of the same, the State has proceeded to adopt various laws. The 1997 Rules and the amendment in 1998 have been adopted in the State of Uttarakhand. In the adoption order, it has been recited that, in the Rules, wherever there is reference to "Uttar Pradesh", it will be replaced by "Uttaranchal" (it must be noticed that, subsequently, the State has been re-named as Uttarakhand). Therefore, we must read the Rules as meaning training imparted by the Uttarakhand Nurses and Midwives Council. There is yet another controversy relating as to who is imparting training actually, which we will deal with. We only wish to clear the ground for making further progress in the discussion as to the effect of the Rules.
29. As we have noticed, training is to be imparted, we may take it, by the Uttarakhand Nurses and Midwives Council under the Rules on strict interpretation. The further requirement came by way of amendment carried out on 10.09.1998. We have noticed the proviso obtaining after Rule 8. The effect of the proviso is that, after the date of coming into force of the amendment, in order that a person is eligible to be admitted to the Course, which is a course of ANM in which training is to be imparted by the Council, the person must have done Intermediate in Science subjects. The next Rule, which we must bear in mind, is Rule 14. Rule 14(1), in substance, would appear to mandate that selection for training will be made in proportion to the number of vacancies, which are to be 20 filled-up. Rule 15 of the Rules provides for the procedure in making the selection. It contemplates that selection has to be made on the basis of Advertisement issued by the Director General of Medical Health. It is not in dispute that the impugned Advertisement dated 15.03.2016 has been issued by the Director General.
30. Having noticed the Rules, we must now pass on to consider what is provided in the Advertisement. In the Advertisement, it is, inter alia, provided that the candidates, in order to be eligible, must have the qualifications prescribed by the Indian Nursing Council. It is further provided that the candidates must have been registered with the Council. Rule 15 also provides that the candidates are to be selected from those, who have the qualifications as provided in Rules 5 & 8. Clause 7 of the Advertisement, however, provided that the selection will be made in accordance with the Rules in force. As on the date of the Advertisement, the Rules in force are the Rules, which we have referred to and adverted to. Thus, we may take it that the Rules, as on the date of the Advertisement, clearly mandated that a candidate, for being selected as Health Worker (Female), must have, inter alia, done Intermediate in Science and, then, secured admission to the ANM Course, in which training was imparted by the Council; besides being registered with the Council.
31. On the aforesaid appreciation of the Advertisement and the Rules, there can be no manner of doubt that none of the appellants, who have filed the appeals with leave and who have Intermediate in Arts, could be considered eligible and, therefore, the direction given by the learned Single Judge could not be faulted in any manner.
32. It is confronted with this situation, apparently, the appeals have been filed to raise the contention that the Rules themselves, in turn, cannot be countenanced, as they run repugnant to the Central Legislation. This brings us to the arguments based on repugnancy. The Constitution provides for a quasi-federal body polity. Sovereignty is shared between 21 Parliament and the State Legislatures. It is settled law that the Entries in the Seventh Schedule are fields of Legislation and the actual source of Legislative power is contained in Article 246. Article 246, read with the relevant Entry in the List, would clothe the concerned Legislature with the power to make laws. Since the matter is no longer res integra and has been subject matter of catena of decisions, we may refer to a few of them. In M/s Hoechst Pharmaceuticals Ltd. & others vs. State of Bihar & others, reported in (1983) 4 SCC 45, a Bench of three Judges of the Apex Court had elaborately considered the matter. We only may refer to the following paragraphs:
"40. We find it difficult to subscribe to the proposition advanced on behalf of the appellants that merely because of the opening words of Article 246(3) of the Constitution "Subject to clauses (1) and (2)" and the non-obstante clause in Article 246(1) "Notwithstanding anything in clauses (2) and (3)", sub-section (3) of Section 5 of the Act which provides that no dealer shall be entitled to collect the amount of surcharge must be struck down as ultra vires the State Legislature inasmuch as it is inconsistent with paragraph 21 of the Drugs (Price Control) Order issued by the Central Government under sub-section (1) of Section 3 of the Essential Commodities Act which enables the manufacturer or producer of drugs to pass on the liability to pay sales tax to the consumer. The submission is that sub-section (3) of section 5 of the Act enacted by the State Legislature while making a law under Entry 54 of List II of the Seventh Schedule which interdicts that a dealer liable to pay surcharge under sub-section (1) of section 5 of the Act shall not be entitled to collect it from the purchaser directly trenches upon Union power to legislate with respect to fixation of price of essential commodities under Entry 33 of List III. It is said that if both are valid, then ex hypothesi the law made by Parliament must prevail and the State law pro tanto must yield. We are afraid, the contention cannot prevail in view of the well accepted principles.
69. We fail to comprehend the basis for the submission put forward on behalf of the appellants that there is repugnancy between sub-section (3) of Section 5 of the Act which is relatable to Entry 54 of List II of the Seventh Schedule and paragraph 21 of the Control order issued by the Central Government under sub-section (1) of Section 3 of the Essential Commodities Act relatable to Entry
33 of List III and therefore sub-section (3) of Section 5 of the Act which is a law made by the State Legislature is void under Art. 254(1). The question of repugnancy under Art. 254(1) between a law made by Parliament and a law made by the State Legislature arises only in case both the legislations occupy the same field with 22 respect to one of the matters enumerated in the Concurrent List, and there is direct conflict between the two laws. It is only when both these requirements are fulfilled that the State law will, to the extent of repugnancy, become void. Art. 254(1) has no application to cases of repugnancy due to overlapping found between List II on the one hand and List I and List III on the other. If such overlapping exists in any particular case, the State law will be ultra vires because of the non-obstante clause in Art. 246(1) read with the opening words "Subject to" in Art. 246(3). In such a case, the State law will fail not because of repugnance to the Union law but due to want of legislative competence. It is no doubt true that the expression "a law made by Parliament which Parliament is competent to enact" in Art. 254(1) is susceptible of a construction that repugnance between a State law and a law made by Parliament may take place outside the concurrent sphere because Parliament is competent to enact law with respect to subjects included in List III as well as List I. But if Art. 254(1) is read as a whole, it will be seen that it is expressly made subject to clause (2) which makes reference to repugnancy in the field of Concurrent List - in other words, if clause (2) is to be the guide in the determination of scope of clause (1), the repugnancy between Union and the State law must be taken to refer only to the Concurrent field. Art. 254(1) speaks of a State law being repugnant to (a) a law made by Parliament or (b) an existing law. There was a controversy at one time as to whether the succeeding words "with respect to one of the matters enumerated in the Concurrent List" govern both (a) and (b) or (b) alone. It is now settled that the words "with respect to"
qualify both the clauses in Art. 254(1) viz. a law made by Parliament which Parliament is competent to enact as well as any provision of an existing law. The underlying principle is that the question of repugnancy arises only when both the Legislatures are competent to legislate in the same field i.e. with respect to one of the matters enumerated in the Concurrent List. Hence, Art. 254(1) cannot apply unless both the Union and the State laws relate to a subject specified in the Concurrent List, and they occupy the same field."
33. This judgment has been referred to in various subsequent judgments of the Apex Court. We may notice in this regard the following paragraphs of the judgment in Bondu Ramaswamy & others vs. Bangalore Development Authority & others, reported in (2010) 7 SCC 129:
"91. The question of repugnancy can arise only where the State law and the existing Central law are with reference to any one of the matters enumerated in the Concurrent List. The question of repugnancy arises only when both the legislatures are competent to 23 legislate in the same field, that is, when both the Union and State laws relate to a subject in List III. Article 254 has no application except where the two laws relate to subjects in List III [See: M/s. Hoechst Pharmaceuticals vs. State of Bihar - 1983 (4) SCC 45]. But if the law made by the State Legislature, covered by an Entry in the State List, incidentally touches upon any of the matters in the Concurrent List, it is well-settled that it will not be considered to be repugnant to an existing Central law with respect to such a matter enumerated in the Concurrent List. In such cases of overlapping between mutually exclusive lists, the doctrine of pith and substance would apply. Article 254(1) will have no application if the State law in pith and substance relates to a matter in List II, even if it may incidentally trench upon some item in List III. (See Hoechst (supra), Megh Raj v. Allah Rakhia AIR 1947 PC 72, Lakhi Narayan v. Province of Bihar AIR 1950 FC 59).
92. Where the law covered by an Entry in the State List made by the State Legislature contains a provision which directly and substantially relates to a matter enumerated in the Concurrent List and is repugnant to the provisions of any existing law with respect to that matter in the Concurrent List, then the repugnant provision in the State List may be void unless it can co-exist and operate without repugnancy to the provisions of the existing law.
This Court in Munithimmiah (supra) has held that the BDA Act is an Act to provide for the establishment of a development authority to facilitate and ensure planned growth and development of the City of Bangalore and areas adjacent thereto, and that acquisition of any lands, for such development, is merely incidental to the main object of the Act, that is, development of Bangalore Metropolitan area. This Court held that in pith and substance, the BDA Act is one which squarely falls under Entry 5 of List II of the Seventh Schedule and is not a law for acquisition of land like the LA Act, traceable to Entry 42 of List III of the Seventh Schedule, the field in respect of which is already occupied by the Central Act, as amended from time to time. This Court held that if at all, the BDA Act, so far as acquisition of land for its developmental activities is concerned, in substance and effect will constitute a special law providing for acquisition for the special purposes of BDA and the same will not be considered to be a part of the LA Act. The fallacy in the contention of the appellants is that it assumes, erroneously, that BDA Act is a law referable to Entry 42 of List III, while it is a law referable to Entry 5 of List II. Hence the question of repugnancy and Section 6 of the LA Act prevailing over Section 19 of BDA Act would not at all arise."
34. We may also notice the judgment in State of Kerala & others vs. Map Appraem Kuri Company Limited & another, reported in (2012) 7 SCC 106, wherein a Constitution Bench had an occasion to consider the question as to when a law could be said to be made. The question, which 24 arose, was whether a law could be said to be made even if a law contemplated a future notification to bring the law into force. The court took the view that the law would be made when it is enacted and it received the assent of the President and it did not have anything to do with when the law was actually enforced for the purpose of attracting the doctrine of repugnancy. We may refer to only the following paragraphs:
"39. One more aspect needs to be highlighted. Article 246(1) begins with a non-obstante clause "Notwithstanding anything in clauses (2) and (3)". These words indicate the principle of federal supremacy, namely, in case of inevitable conflict between the Union and State powers, the Union powers, as enumerated in List I, shall prevail over the State powers, as enumerated in Lists II and III, and in case of overlapping between Lists III and II, the former shall prevail. [See: Indu Bhusan Bose versus Rama Sundari Devi & Anr. -(1970) 1 SCR 443 at 454].
40. However, the principle of federal supremacy in Article 246(1) cannot be resorted to unless there is an "irreconcilable"
conflict between the entries in Union and State Lists. The said conflict has to be a "real" conflict. The non-obstante clause in Article 246(1) operates only if reconciliation is impossible. As stated, Parliamentary Legislation has supremacy as provided in Article 246 (1) and (2). This is of relevance when the field of legislation is in the Concurrent List. The Union and the State Legislatures have concurrent power with respect to the subjects enumerated in List III. [See: Article 246(2)]. Hence, the State Legislature has full power to legislate regarding subjects in the Concurrent List, subject to Article 254(2), i.e., provided the provisions of the State Act do not come in conflict with those of the Central Act on the subject. [See: Amalgamated Electricity Co. (Belgaum) Ltd. versus Municipal Committee, Ajmer - (1969) 1 SCR 430]. Thus, the expression "subject to" in clauses (2) and (3) of Article 246 denotes supremacy of Parliament.
43. Our Constitution gives supremacy to the Parliament in the matter of making of the laws or legislating with respect to matters delineated in the three Lists. The principle of supremacy of the Parliament, the distribution of legislative powers, the principle of exhaustive enumeration of matters in the three Lists are all to be seen in the context of making of laws and not in the context of commencement of the laws.
47. The question of repugnancy between the Parliamentary Legislation and State Legislation arises in two ways. First, where the Legislations, though enacted with respect to matters in their allotted spheres, overlap and conflict. Second, where the two Legislations are with respect to matters in the Concurrent List and there is a conflict. In both the situations, the Parliamentary Legislation will predominate, in the first, by virtue of non-obstante 25 clause in Article 246(1); in the second, by reason of Article 254(1)."
35. Since the issue raised in this case relates more appropriately to the effect of the decisions rendered in the context of Entry 25 of List III and Entry 66 of List I, we may advert to some of the decisions rendered on the said subject. The first judgment, we would refer to, is the judgment in State of T.N. & another vs. Adhiyaman Educational & Research Institute & others, reported in (1995) 4 SCC 104. In the said judgment, the Apex Court was dealing with the issue as to whether the norms made by the All India Council for Technical Education (hereinafter referred to as the "AICTE"), made with reference to Entry 66 of List I and Entry 25 of List III, would prevail over the State Legislature, which were purported to be made under Entry 25 of List III. In this regard, we must notice that, originally, education was covered under Entry 11 of List II. It is, after the 42nd Amendment, that the Entry without any change was inserted in the Concurrent List as Entry 25. Entry 66 of List I reads as follows:
"66. Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions."
36. Therefore, it was considering the scope of the expression "coordination" in Entry 66 that the Apex Court proceeded to lay down as follows:
"41. .What emerges from the above discussion is as follows:
(i) The expression "coordination" used in Entry 66 of the Union List of the Seventh Schedule to the Constitution does not merely mean evaluation. It means harmonisation with a view to forge a uniform pattern for a concerted action according to a certain design, scheme or plan of development. It, therefore, includes action not only for removal of disparities in standards but also for preventing the occurrence of such disparities. It would, therefore, also include power to do all things which are necessary to prevent what would make "coordination" either impossible or difficult. This power is absolute and unconditional and in the absence of any valid compelling reasons, it must be given its full effect according to its plain and express intention.26
(ii) To the extent that the State legislation is in conflict with the Central legislation though the former is purported to have been made under Entry 25 of the Concurrent List but in effect encroaches upon legislation including subordinate legislation made by the Centre under Entry 25 of the Concurrent List or to give effect to Entry 66 of the Union List, it would be void and inoperative.
(iii) If there is a conflict between the two legislations, unless the State legislation is saved by the provisions of the main part of clause (2) of Article 254, the State legislation being repugnant to the Central legislation, the same would be inoperative.
(iv) Whether the State law encroaches upon Entry 66 of the Union List or is repugnant to the law made by the Centre under Entry 25 of the Concurrent List, will have to be determined by the examination of the two laws and will depend upon the facts of each case.
(v) When there are more applicants than the available situations/seats, the State authority is not prevented from laying down higher standards or qualifications than those laid down by the Centre or the Central authority to shortlist the applicants. When the State authority does so, it does not encroach upon Entry 66 of the Union List or make a law which is repugnant to the Central law.
(vi) However, when the situations/seats are available and the State authorities deny an applicant the same on the ground that the applicant is not qualified according to its standards or qualifications, as the case may be, although the applicant satisfies the standards or qualifications laid down by the Central law, they act unconstitutionally. So also when the State authorities derecognise or disaffiliate an institution for not satisfying the standards or requirement laid down by them, although it satisfied the norms and requirements laid down by the central authority, the State authorities act illegally."
37. We may, interestingly, also note the following discussion in regard to the issue relating to repugnancy, which may arise in the context of a pre-constitutional law, which is contained in paragraphs 13, 14 & 15:
"13. We may now refer to the provisions of Articles 246, 248 and 254 in Part II of Chapter 1 which relates to the distribution of the legislative powers between the Parliament and the State Legislatures.- It is not necessary to enter into a detailed discussion of these Articles since they have been the subject matter of various decisions of this Court. We may only summarise the effect of these Articles as has emerged through the judicial decisions, so far as it is relevant for our present discussion. -While Article 246 states the obvious, viz. that Parliament has exclusive power to make law.-, with respect to any of the matters enumerated in List I and has also the power to make laws with respect to any of the matters enumerated in List 111, the State Legislature has exclusive power 27 to make laws with respect to any of the matters enumerated in List II subject, of course, to the Parliament's power to make laws on matters enumerated in List I and List III. Parliament has also power to make laws on matters enumerated in List II for any part of the territory of India not included in a State. Article 248 vests the Parliament with the exclusive power to make any law not enumerated in the Concurrent List or the State List including the power of making any law imposing a tax not mentioned in those Lists. This is a residuary power of legislation conferred on the Parliament and is specifically covered by Entry 97 of list 1. In case of repugnancy in the legislations made by the Parliament and The State Legislatures which arises in the case of Legislations on a subject in List "ill, the law made by the Parliament whether passed before or after the law passed by the State Legislature shall prevail and to that extent, the law made by the Legislature of a State will be void. Where, however, the law made by the Legislature of a State is repugnant to the provisions of an carrier law made by Parliament or an existing law with respect to that matter, the law made by the Legislature of the State shall, if it has received the assent of the President, prevail in that State. However, this does not prevent the Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State. The repugnancy may also arise between a pre-Constitutional law made by the then Provincial Legislature which continues to be in force by virtue of Article 372 and the post-Constitutional law of Parliament in which case, the law made by the Provincial Legislature shall stand impliedly repealed to the extent of repugnancy to the law made by the Parliament.
14. According to some jurists, the repugnancy may also arise between a pre--Constitutional law made by the then Provincial Legislature which continues to be in force by virtue of Article 372 and the post Constitutional law of the Parliament in which case by virtue of the first part of Article 254 [1], the law made by the Parliament shall prevail, notwithstanding that the Provincial Legislature was competent to make the law prior to the commencement of the Constitution. This is the consequence of the relevant provision of Article 254 (1) which reads as follows:
"254(1) Inconsistency between laws made by Parliament and the laws made by the Legislatures of States.
- (1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact... the law made by Parliament, whether passed before or after the law made by the Legislature of such State... shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void."
15. According to this view, it is to take care of this repugnancy that the aforesaid provision in the first part of Article 254 (1) is made. The repugnancy arising out of the two laws made on matters in the Concurrent List is referred to in the other part of 28 Article 254 (1) and if the framers of this Constitution wanted to provide only for the repugnancy arising between the two laws made on the subjects in the Concurrent List, the aforesaid provision of Article 254 (1) was unnecessary. However, in view of the repugnancy resulting in implied repeal of the pre-Constitutional provincial law by the post-Constitutional parliamentary law, this controversy need not detain us here."
38. We noticed this aspect for the reason that, in an earlier judgment, which was rendered in the case of B.V. Patankar & others vs. C.G. Sastry, reported in AIR 1961 SC 272, the contention raised was that the Mysore House Rent and Accommodation Control Order 1948 was repugnant to the Transfer of Property Act, which latter law was extended to the State of Mysore from 01.10.1951 and, answering the same, the Apex Court held as follows:
"7. ... The argument, therefore, that as from April 1, 1951, as a result of repugnancy the House Rent Control Order of 1948 stood repealed must be repelled as unsound and cannot be sustained, because it was an existing law which was saved by Art. 372 of the Constitution and remained unaffected by Art. 254. The Punjab High Court in M/s. Tilakram Rambaksh v. Bank of Patiala, AIR 1959 Punj 440 at p. 447 discussing the effect of Part B States (Laws) Act on the application of the Transfer of Property Act to Pepsu said:
"All that Central Act III of 1951 has done is to make it possible for Part B States to extend the Act to any part of territory by notification. Actually, however, this wag never done by Pepsu or Punjab and the Transfer of Property Act is not as such in force there. It is unnecessary in the circumstances to examine the argument further".
Although the question of repugnancy was raised in the High Court at the time of the hearing of the appeal, the true effect of S. 3 of the Part B States (Laws) Act was not brought to the notice of the learned Judges nor was the Notification placed before them, but it was discussed by the High Court in its order refusing certificate under Art. 133(1) of the Constitution. The argument of repugnancy, therefore, is wholly inefficacious in this appeal."
39. In these cases also, we may notice that the 1947 Act is a pre- constitutional Act, which is obviously continued under Article 372 of the Constitution. Interestingly, we may notice Article 254, which reads as follows:
29"254. Inconsistency between laws made by Parliament and laws made by the Legislatures of States. - (1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.
(2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State:
Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State."
40. A question may arise, whether, treating the 1947 Act as an existing law if it is traced to Entry 66 of List I, could it be said that there is any repugnancy at all vis-à-vis the Rules made by the State. We need not even be detained by this aspect for other reasons, which will appear in our judgment.
41. Moving forward with the discussion in relation to the decisions under Entries 25 of List III & 66 of List I, considerable reliance is placed on the judgment in (1995) 4 SCC 104 by the learned counsel for the appellants; in that, it was contended that the State, in these cases, is guilty of attempting to do indirectly what it cannot do directly. In other words, the contention we must notice is that, in regard to the criteria for admission to the ANM Course, the supreme authority is the authority under the 1947 Act. It has prescribed the qualification or the norm. The norm, originally, was "pass in the 10th standard". That norm was further enhanced to 10+2. If that is so, it would amount to tinkering with the scheme, which is intended to produce uniformity throughout the length and breadth of the country. It was also pointed out to us that, after 30 completing the Course successfully, employment can be legitimately expected only in the Government sector. If that is so, if, after a candidate passes out having completed the Course successfully from any institute in India, which is recognised and which conforms to the norms set by the Indian Nursing Council, the State could not, in the guise of the Rules made under Article 309, provide for a different criteria for admission to the course. It is submitted that this is usurpation of the power, which is legitimately to be exercised by the Central Authority under the Constitutional scheme and, therefore, there is clear repugnancy. In other words, when the Nursing Council has prescribed the qualifications as the minimum qualifications, it is not open to the State to prescribe any different qualification. This will introduce chaos, particularly bearing in mind that the purpose of training is to provide employment to those, who are undergoing training after conforming to all the requirements prescribed by the Central authority. It is submitted that if the stand of the State is countenanced, the same will render the entire Regulations made by the Centre an exercise in futility, which cannot be permitted. It runs counter to the case in (1995) 4 SCC 104.
42. The law has not stood still after the pronouncements of the Apex Court in (1995) 4 SCC 104. We may notice that, in subsequent judgments, the Apex Court has taken a different view. We may only notice three judgments in this regard. In Dr. Preeti Srivastava & another vs. State of M.P. & others, reported in (1999) 7 SCC 120, the question arose again under Entry 66 and Entry 25. There, the Apex Court was dealing with standard for post graduate medical education in the context of Indian Medical Council Act, 1956. The court took the view that what is prohibited is when the State in exercise of its power under Entry 25 of List III makes a law, which adversely affects the standard of education. This would not, however, stand in the way of the State prescribing higher standards or additional qualifications.
3143. We may also notice paragraphs 8, 9 & 10 of the judgment of the Apex Court in the case of State of T.N. & another vs. S.V. Bratheep (Minor) & others, reported in (2004) 4 SCC 513, which are as follows:
"8. As regards the scope of the Entries in the Constitution arising under Entry 66 of List I and Entry 25 of List III of the Seventh Schedule to the Constitution was examined in great detail by a constitution Bench of this Court in Dr. Preeti Srivastava and Anr. v. State of M.P. and Ors., [1999] 7 SCC 120. After adverting to these two entries in the Seventh Schedule, this Court stated as follows:
"35. ... Both the Union as well as the States have the power to legislate on education including medical education, subject, inter alia, to Entry 66 of List I which deals with laying down standards in institutions for higher education or research and scientific and technical institutions as also coordination of such standards. A State has, therefore, the right to control education including medical education so long as the field is not occupied by any Union legislation. Secondly, the State cannot, while controlling education in the State, impinge on standards in institutions for higher education. Because this is exclusively within the purview of the Union Government. Therefore, while prescribing the criteria for admission to the institutions for higher education including higher medical education, the State cannot adversely affect the standards laid down by the Union of India under Entry 66 of List I. Secondly, while considering the cases on the subject it is also necessary to remember that from 1977, education, including, inter alia, medical and university education, is now in the Concurrent List so that the Union can legislate on admission criteria also. If it does so, the State will not be able to legislate in this field, except as provided in Article 254.
36. It would not be correct to say that the norms for admission have no connection with the standard of education, or that the rules for admission are covered only by Entry 25 of List III. Norms of admission can have a direct impact on the standards of education. Of course, there can be rules for admission which are consistent with or do not affect adversely the standards of education prescribed by the Union in exercise of powers under Entry 66 of List I. For example, a State may, for admission to the postgraduate medical courses, lay down qualifications in addition to those prescribed under Entry 66 of List I. This would be consistent with promoting higher standards for admission to the higher educational courses. But any lowering of the norms laid down can and does have an adverse effect on the standards of education in the institutes of higher education."
9. Entry 25 of List III and Entry 66 of List I have td be read together and it cannot be read in such a manner as to from an exclusivity in the matter of admission but if certain prescription of standards have been made pursuant to Entry 66 of List I, then those 32 standards will prevail over the standards fixed by the State in exercise of powers under Entry 25 of List III insofar as they adversely affect the standards-laid down by the Union of India or any other authority functioning under it. Therefore, what is to be seen in the present case is whether the prescription of the standards made by the State Government is in any way adverse to, or lower than, the standards fixed by the AICTE. It is no doubt true that the AICTE prescribed two modes of admission - One is merely dependent on the qualifying examination and the other dependent upon the marks obtained at the Common Entrance Test. The appellant in the present case prescribed the qualification of having secured certain percentage of marks in the related subjects which is higher than the minimum in the qualifying examination in order to be eligible for admission. If higher minimum is prescribed by the State Government than what had been prescribed by the AICTE, can it be said that it is in any manner adverse to the standards fixed by the AICTE or reduces the standard fixed by it? In our opinion, it does not. On the other hand, if we proceed on the basis that the norms fixed by the AICTE would allow admission only on the basis of the marks obtained in the qualifying examination the additional test made applicable is the common entrance test by the State Government. If we proceed to take the standard fixed by the AICTE to be the common entrance test then the prescription made by the State Government of having obtained certain marks higher than the minimum in the qualifying examination in order to be eligible to participate in the common entrance test is in addition to the common entrance test. In either event, the streams proposed by the AICTE are not belittled in any manner. The manner in which the High Court has proceeded is that what has been prescribed by the AICTE is inexorable and that that minimum alone should be taken into consideration and no other standard could be fixed even the higher as stated by this Court in Dr. Preeti Srivastava's case. It is no doubt true as noticed by this Court in Adhiyaman's case that there may be situations when a large number of seats may fall vacant on account of the higher standards fixed. The standards fixed should always be realistic which are attainable and are within the reach of the candidates. It cannot be said that the prescriptions by the State Government in addition to those of AICTE in the present case are such which are not attainable or which are not within the reach of the candidates who seek admission for engineering colleges. It is not very high percentage of marks that has been prescribed as minimum of 60% downwards, but definitely higher than the mere pass marks. Excellence in higher education is always insisted upon by series of decisions of this Court including Dr. Preeti Srivastava's case. If higher minimum marks have been prescribed, it would certainly add to the excellence in the matter of admission of the students in higher education.
10. Argument advanced on behalf of the respondents is that the purpose of fixing norms by the AICTE is to ensure uniformity with extended access of educational opportunity and such norms should not be tinkered with by the State in any manner.
33We are afraid, this argument ignores the view taken by this Court in several decisions including Dr. Preeti Srivastav's case that the State can always fix a further qualification or additional qualification to what has been prescribed by the AICTE and that proposition is indisputable. The mere fact that there are vacancies in the colleges would not be a matter, which would go into the question of fixing the standard of education. Therefore, it is difficult to subscribe to the view that once they are qualified under the criteria fixed by the AICTE they should be admitted even if they fall short of the criteria prescribed by the State. The scope of the relative entries in the Seventh Schedule to the Constitution have to be understood in the manner as stated in the Dr. Preeti Srivastava's case and, therefore, we need not further elaborate in this case or consider arguments to the contrary such as application of occupied theory no power could be exercised under Entry 25 of List III as they would not arise for consideration."
44. Finally, we may notice that the development of case-law has been noticed in the latest judgment in the case of Modern Dental College and Research Centre & others vs. State of Madhya Pradesh & others, reported in (2016) 7 SCC 353.
45. In the light of this state of the law, we may summarise our understanding of the position in relation to Legislation traceable to Entry 25 of List III and Entry 66 of List I. While Entry 25 enables both the State and the Centre to make laws relating to education, the Entry itself is subject to the power of the Central Legislation to make laws under Entry 66, inter alia. Entry 66, inter alia, deals with coordination of standards of education in higher education, among other things. Nursing can be treated as a higher education. Therefore, Entry 66 would possibly be attracted. But even so and treating the impugned law made in this regard even under exercise of power under Entry 25, we would think that it could not be said that the law, in the form of the statutory Rules, falls foul of the constitutional mandate. The course in question is ANM. If the State thought that those, who undergo ANM Course, should have a background in Science subjects for the better discharge of the duties as an ANM Worker, it is a matter of the wisdom of the rule-maker. It is a matter going to policy of the law-giver. It would not invite the wrath of any constitutional provision, in our understanding. It, certainly, would not 34 lower the standard of admission to the Course. What is mandated through the proviso to Rule 8 is to stipulate a higher or a better qualification, at any rate, for undergoing the Course. Having the background in Science subjects, in the view of the State, would help the students, when they successfully pass-out the course, to better discharge their duties as ANM worker.
46. There is another important aspect to be borne in mind at this juncture. Here, we are not dealing with a case of a conflict per se between a law made in exercise of powers under Entry 25 and the law made under Entry 66. Here, the law has been made in exercise of power under Article
309. Undoubtedly, there is power with the State in the form of Entry 41 of List II. It is here we may also bear in mind the doctrine of pith and substance. The doctrine of pith and substance has been evolved by the courts to assist the courts to properly appropriate a Legislation to the actual source of power. In other words, if a law is made by the State, which can be traced to any of the Entries in List II, for which it is exclusively entitled to make laws ordinarily under the Constitution, the fact that they may incidentally encroach upon the areas vouchsafed for the Central Legislature would not afflict the law with any fatal blemish. It is also necessary, as laid down by the Apex Court, when a question of repugnancy is raised, to appreciate the scope of the inconsistency and also the subject matter of the law. In this case, the law, as we understand, is made in the exercise of power under Entry 41, which relates to employment, read with Article 309. Also, the State has power under Entry 25 of List III. It is certainly open to the State to provide as a condition for recruiting its employees that the employees must have received training in the manner, which is provided in the Rule.
47. In this context, we may, at once, deal with one of the contentions raised by Mr. Prabhat Bohara, learned counsel for the appellants. He drew our attention to a judgment of the Apex Court rendered in State of Punjab vs. Kailash Nath, reported in (1989) 1 SCC 321. Therein, the Apex Court was dealing with the question in regard to the provision, 35 which is usually contained in all service laws that pension of an employee could be withheld or reduced, if it is inter alia found in proceedings or a judicial proceeding that he has committed misconduct. The proviso contained prohibition against a judicial proceeding being instituted in respect of a matter, which related to a period prior to four years of his retirement. The Apex Court took the view that this would not be embraced within the scope of the expression "conditions of service"
obtaining in Article 309. The court took the view that conditions of service would be those matters, which relate to the period after the date of appointment. The court went on to read down the provisions and held that the criminal prosecution of an employee could be made; but, if it is made, it would only have the effect of not enabling the Government to recover or reduce the pension, or otherwise withheld the pension. We would think that the said judgment has no application to the facts of this case. This is for the reason that the learned counsel does not take into consideration the word "recruitment" in Article 309. The word "recruitment" is a word of wide import and it relates to the period prior to appointment and it would take-in the whole gamut of procedures undertaken to select a person pursuant to which, finally, he would be appointed. In this case, the Rules, indeed, relate to the recruitment of the employees, insofar as it proceeds to provide for the source, the qualifications which are to be obtained and the qualifications include the qualification that he should receive training in the manner provided after having undertaken a particular course, in this case, Intermediate in Science subjects.
48. It is to be noticed also that, originally, the Indian Nursing Council had fixed passed in 10th standard as the qualification. This continued till 2012. By no stretch of imagination, could it be said that the prescription of Intermediate in Science in 1998 is not a higher qualification. Even after the prescription of the qualification of Intermediate by the Nursing Council in 2012, no doubt, without indicating whether it is Science or Arts, the continued validity of the Rule providing for Science as the background in Intermediate Course would not be vetoed for the reason 36 that it would certainly be treated as a better qualification in the view of the State and it is not a qualification, which adversely impacts the standard.
49. We do not see any merit in the contention of Mr. Prabhat Bohara that the purport of Service Rules should be to provide equal opportunity and, therefore, the provision is bad. We would think that law permits distinctions made on matters of substance. A student, who has undertaken ANM Course having Science subjects, is clearly different from a student, who has undertaken ANM Course in Arts subject. Certainly, there is an intelligible differentia differentiating Arts students from Science students. We are considering the difference at the level of Intermediate, which is after the passing of the 10th standard. Understanding of Science at that level cannot be said to have no nexus with the job at hand.
50. We, equally, repel the argument of Mr. Prabhat Bohara that the classification is arbitrary. As we have noticed, there is an intelligible differentia between the two. The argument that merit could have been considered and, therefore, Arts students and Science students should have been evaluated on the basis of their inter se merit and that would have been a better way of doing it, does not commend itself to us, as this is a matter of policy and it is for the State to decide as to what the qualification should be in the matter of appointment of its employees. Also irrelevant is the fact that they had undergone the same syllabus and training. We would think that these are no grounds for challenging a law on the basis of repugnancy.
51. The contention that there is no whisper in the Advertisement that the 1998 Rules would apply, does not appeal to us at all. It has been categorically mentioned that the Rules in force will apply. This necessarily means that it is the 1997 Rules, as amended in 1998.
52. The contention of Mr. Prabhat Bohara that there is violation of Articles 15(2) & 16(2) with reference to the Advertisement on the basis of which the petitioners in Writ Petition (S/S) No. 647 of 2016 were selected 37 being based on district-wise consideration, does not appeal to us at all. This is for the reason that, in the first place, there is no challenge to the said Advertisement by the appellants. It appears that there are seven institutes, which are run by the State of Uttarakhand in the State imparting training in ANM. The training, apparently, is being imparted in two ways; one is when training is being imparted in connection with the employment contemplated under the Rules, in particular Rule 14, the Institutes insist on the qualification of Intermediate in Science. Apart from this training, the Institutes possibly have been giving training, where they have not been insisting on Intermediate in Science. In this regard, we are in the dark regarding, for instance, the case built-up by Mr. Subhash Upadhyaya that, though the appellants had Arts qualification, they had applied, they were admitted, they underwent the Course and they cannot be turned off the gates. The Advertisement in question has not been produced. Therefore, invoking Articles 15(2) and 16(2) on the basis that they forbid discrimination only on the basis of place of birth or the place of residence, in the facts of this case, does not appeal to us and we repel it.
53. Another argument, which is commonly raised by almost all the counsel, is regarding the word 'training imparted' in the Rules. True it is that Rules 5 & 8 contemplate that training in ANM is to be imparted by the Nurses and Midwives Council. There can be no dispute and, in fact, it is admitted that the training is not being imparted by the Council. In fact, there is an argument that training has never been imparted even in the State of Uttar Pradesh by the Council. After the birth of the State of Uttarakhand also, training has never been imparted by the Council. This presents a dilemma insofar as we would have to countenance at least transgression of the Rules to the extent that the qualification stands clouded insofar as it is not imparted by the Council. The training, it appears, is imparted, on the other hand, by the Uttarakhand Medical Faculty. It is, now, necessary to, therefore, consider the problem in some detail. Rules 5 & 8 contemplate that the training must be imparted by the 38 Council. At this juncture, we may refer to Section 88 of the U.P. Reorganisation Act, 2000, which reads as follows:
"88. Power to construe laws. - Notwithstanding that no provision or insufficient provision has been made under Section 87 for the adaptation of a law made before the appointed day, any court, tribunal or authority, required or empowered to enforce such law may, for the purpose of facilitating its application in relation to the State of Uttar Pradesh or Uttaranchal, construe the law in such manner, without affecting the substance, as may be necessary or proper in regard to the matter before the court, tribunal or authority."
54. This gives the courts power to construe matters and, apparently, this provision has been inserted to deal with the issue, which arises out of the reorganisation of the State. We must also bear in mind that, even in the State of Uttar Pradesh, never had the Council imparted training. If we were to interpret this provision strictly, we would be confronted with the resultant position, which would be that there would be nobody, who is qualified to be appointed as Health Worker. Importance of Health Workers, be it male or female, cannot be sufficiently stated. Throughout the length and breadth of the country, the ANM workers perform a very important role in securing the health of particularly females and children. The fact that there is a dire need for ANM Workers cannot be under- estimated. There is shortage of ANM Workers throughout the country, is also a fact, which can be taken judicial notice of. If we take the view, which we are invited to do by the appellants, then, even if background in Science at the Intermediate level is necessary and, therefore, they are not qualified, the entire selection must go as there is no one, who has been trained by the Council. It would introduce chaos of the worst sort and bring to an end the recruitment process for Health Workers. On the other hand, we must notice that, even in the State of Uttar Pradesh, acting in terms of the Uttar Pradesh State Medical Faculty Rules of 1926, Medical Education Board has been constituted. The medical faculty imparts education. This has been the position in the State of Uttar Pradesh. This continued to be the position even in the State of Uttarakhand. It is to be noticed that, in the State of Uttarakhand, ANM Course is being run by 39 seven State Institutes. All seven are recognised by the Nursing Council. Therefore, we would think that, having regard to the position obtaining prior to the creation of the State of Uttarakhand and after the creation of the State of Uttarakhand and having regard to the calamitous consequences that would follow if we were to hold otherwise and exercising power under Section 88 of the U.P. Reorganisation Act also, we would think that the training imparted to the students in the seven State Institutes would suffice for the purpose of Rule 8 of the Rules.
55. The argument based on legitimate expectation also does not appeal to us at all. Legitimate expectation is one of the latest tools in the armory of the superior courts to deal with the State so that exacting standards of fairness can be extracted from it and State can be held to the course of conduct, which is promised, or the pattern of conduct by it and also, in appropriate cases, procedural aspect relating to legitimate expectation is involved to comply with the principles of natural justice. Legitimate expectation cannot be successfully enlisted to attack a statutory rule, at any rate. It would also not help a person to get selection in the teeth of a statutory rule and we have no hesitation in rejecting it.
56. The contention of Mr. Prabhat Bohara that the appellants were not parties would, ordinarily, have weighed with us; but the fact remains that the matter was heard at length and we see no justification otherwise to interfere with the judgment passed by the learned Single Judge. Therefore, the lacunae, if at all in the original judgment, have been made up in the appeal. We see no reason to take a different view and we think that the learned Single Judge was right in holding that those, who have passed Intermediate in Arts, are not eligible. It is also to be noticed that, even in the Advertisement, though there is reference to the qualification as per the Indian Nursing Council, in the very same Advertisement, it provided that the Rules would apply. Therefore, it was a question of harmonious reconciliation between the various clauses of the Advertisement.
4057. The argument of Mr. Subhash Upadhyaya that the Advertisement refers to the qualification prescribed by the Indian Nursing Council stands sufficiently answered by our finding, which we have rendered earlier, namely, that it should be understood as only meaning that the qualification fixed by the Indian Nursing Council, as is consonant with the statutory rule, must be obtained by a candidate.
58. We are also not impressed by the contention of Mr. Subhash Upadhyaya that the training institutes gave training to students having background in Arts and, therefore, they cannot be denied. As we have noticed, apparently, the institutes impart training without reference to the requirement under the Rules. In such a case, perhaps, the institutes were not insisting on the qualification of Intermediate in Science and, at any rate, there cannot be estoppel against a statutory rule and it cannot entitle a party, who had undergone training, to take the benefit of the Rule.
59. We are also unimpressed by the argument that the adoption order does not refer to the amendment dated 10.09.1998. The adoption order refers to the Rules made in the year 1997, the amendment in 1998 and a communication which is in the month of July. There is no dispute that there is only one amendment made in 1998. The amendment in 1998 has been expressly referred to. Therefore, we may safely conclude that the amendment of 1998 dated 10.09.1998 has also been adopted, which means that, in the State of Uttarakhand also, the requirement continues that the person should have background in Science.
60. As far as the contention raised that the writ petitioners, after applying, are estopped from challenging the provision is concerned, it is no doubt true that we have, in our judgment in State of Uttarakhand & another vs. Keshavanand Jhaldiyal, reported in 2014 (2) UD 485, taken the view that the candidates had applied in that case and, therefore, nothing remained; but, that is a case, where, once an application is made, then inexorable process of selection, which included awarding of appropriate marks based on what was provided in the Rules, would 41 follow. This Court did not rest its decision essentially on that aspect. In this case, it may be true that the writ petitioners, after having applied pursuant to the Advertisement, have approached the Court. We would think that, having regard to the fact that the Rules are clear, the matter required at least a clarification as indicated. The Advertisement itself intrinsically had a clause, which countenanced that the matter will be concluded in terms of the Rules. In fact, the State took the contention that the Advertisement was issued in accordance with the Rules. There is, in fact, reference to the Rules also. Therefore, we would think that the contention raised by Mr. Subhash Upadhyaya may not hold good.
61. In this regard at any rate, we may notice the preliminary objection raised by the writ petitioners in Writ Petition (S/S) No. 647 of 2016. In all these appeals, there is a fatal blemish affecting the appeals. In all the appeals, the prayer is to set aside the common judgment passed in seven writ petitions. Petitioners in Writ Petition (S/S) No. 647 of 2016, alone, have been made party respondents in all the appeals. The writ petitioners in all the other six writ petitions have not been made parties. This we say goes to the root of the matter for the following reason:
Even if we allow the appeals, we could possibly allow only the appeals filed as against the judgment in Writ Petition (S/S) No. 647 of 2016. This, in turn, is for the reason that the affected persons, who are clearly necessary parties being the writ petitioners in whose favour the learned Single Judge has pronounced the judgment, are not made parties in any of the appeals. If we are to allow the appeals in this fashion, namely, by setting aside the judgment only in Writ Petition (S/S) No. 647 of 2016, there will be inconsistent judgments; one of the appellate court setting aside the judgment passed by the learned Single Judge and the other where the judgment rendered by the learned Single Judge in the other six writ petitions would stand. We cannot have a situation, where there would be inconsistent judgments. Even the principle of Order 41 Rule 33 cannot be invoked in a case, where the judgment is rendered against the persons, who are not before the court. A judgment could possibly be rendered in a case, where the persons are parties before the 42 learned Single Judge, but not before the Division Bench; but, it must be a judgment in their favour. There cannot be a situation, where we could possibly interfere with the judgment passed by the learned Single Judge in the other six writ petitions.
62. Even though Mr. Prabhat Bohara, learned counsel for the appellants submitted that they may be permitted to implead the necessary parties, we would think that it is highly belated and, in any way, having regards to the merits of the matter, we reject the said request also. Even if an application is filed, we would think that it is only to be rejected.
63. Mr. Paresh Tripathi, learned Chief Standing Counsel would point out that power to make regulations under Section 16 does not give the power to make regulations governing the appointment of persons by the State. We feel that there is some merit in that contention.
64. As far as Writ Petition (S/S) No. 1577 of 2011 is concerned, the prayer in the said writ petition is as follows:
"(i) Issue a writ, order or direction in the nature of mandamus commanding the respondent authorities to initiate the selection process for filling up the vacant posts of ANM and to consider the candidature of the petitioners for being appointed on the vacant posts of ANMs strictly as per the Service Rules and more pertinently in light of the fact that other similarly situated persons must junior to the petitioners have already been given appointment following the criterion of giving appointment to candidates have requisite qualification on batch wise manner."
65. Petitioners therein are working as contractual ANM Workers. They, apparently, continued for a long time under the interim order of this Court. In the body of the writ petition, it has been specifically averred that, in the year 2011, the State decided to fill-up vacancies in a regular way on the posts of ANM Workers. The petitioners applied. Their applications were rejected. As contended by the learned counsel for the respondents, the petitioners had not challenged the rejection order. The 43 petitioners have also not called in question the statutory Rules. The rejection of their applications is on the score that they have passed Intermediate in Arts, while the Rules require that Intermediate must be in Science. Obviously, reference is made to the 1997 Rules, as amended by the 1998 Rules. Still, the petitioners have not challenged either the rejection order or the statutory rules. As far as the question of repugnancy is concerned, we have already adverted to it. We would think that there is no merit in the same. Regarding the contention that thousands of candidates have been appointed without their having Intermediate in Science, we would think that we are called upon in these proceedings to pronounce on the legality of the Advertisement and also the Rules. This is a matter, which we must decide with reference to the state of law and also the validity of the proceedings and the Rules. We cannot be detained by what has happened. We must prepare the ground for action in the future based on the Rules. In this regard, we may advert to Monnet Ispat and Energy Limited vs. Union of India & others, reported in (2012) 11 SCC 1 that there is no scope for applying the doctrine of desuetude. A statute may die a natural death on account of long disuse. We may advert to the following paragraph:
"201. From the above, the essentials of doctrine of desuetude may be summarized as follows:
(i) The doctrine of desuetude denotes principle of quasi repeal but this doctrine is ordinarily seen with disfavour.
(ii) Although doctrine of desuetude has been made applicable in India on few occasions but for its applicability, two factors, namely, (i) that the statute or legislation has not been in operation for very considerable period and (ii) the contrary practice has been followed over a period of time must be clearly satisfied. Both ingredients are essential and want of anyone of them would not attract the doctrine of desuetude.
In other words, a mere neglect of a statute or legislation over a period of time is not sufficient but it must be firmly established that not only the statute or legislation was completely neglected but also the practice contrary to such statute or legislation has been followed for a considerable long period."
66. In this regard, we may notice that, far from not using the Rule, the fact that in 2011, within a little over a decade of the formation of the State 44 of Uttarakhand, when the recruitment was made to the post of Health Worker (Female), the authorities invoked the self-same Rule and rejected the applications of the petitioners, the same would show that the Rule was very much relied and the authorities intended to enforce the Rule, no doubt, in the form modified as we have already noticed. Therefore, we cannot, but give effect to the statutory rule, which we have found to be not repugnant and also not afflicted with any other blemish.
67. The argument of Mr. Shobhit Saharia that there is a distinction to be borne in mind between admission to the training and employment, also does not appeal to us. Admission to training is a matter, which is governed by the statutory rules made under Article 309, read with Entry 41 of List II to the Seventh Schedule. Recruitment to service would involve the things anterior to the actual appointment. It is set in motion usually by the issuance of an advertisement calling for applications and the applications are to be considered and processed in the manner provided by the statutory rules and the advertisement. In the Rules in question, what is contemplated is that the person must receive ANM training. In this regard, we must also bear in mind that there is no case that the syllabus in the course is different from the syllabus, which has been set by the Indian Nursing Council. All that has happened is that, for being qualified for the course and, in turn, to be appointed, the State has inserted the requirement that the candidate must have background in Science subjects at the Intermediate level, which is the level of education, which precedes the admission to the ANM Course. We would think that these are all matters, which would be governed by Article 309, read with Entry 41 of List II, and it is, certainly, open to the State to determine such a qualification.
68. There is another aspect about the appellant No. 1 in Special Appeal No. 156 of 2017. She has done ANM Course prior to 1998; but, she has done ANM Course from the State of Punjab. Even if we proceed on the basis that the amendment in 1998 would not affect her insofar as she has undergone training before 1998, since she has not done ANM Course 45 from any Institute in the State of Uttarakhand, we would think that the said appellant may not have a case and we need not be detained by the same.
69. Now, there remains only Special Appeal No. 353 of 2017. Appellants therein are the writ petitioners in Writ Petition (S/S) No. 648 of 2016. Their complaint appears to be that they were selected for training. It was, essentially, district-wise training. They were assured, according to them, that, in terms of Rule 14, they would secure employment. But the impugned Notification was issued purporting to call for applications from persons all over the State. Appellants also applied pursuant to the same. Their case is that the purport of Rule 14 is that training is to be imparted on the basis which corresponds to the number of vacancies which are to be filled-up. In other words, if vacancies are there and if they are trained, it means that they get a right to be appointed against the vacancies with respect to which they were called for training. They referred to the document at page 79 of the writ petition in this regard.
70. While it is true that Rule 14 refers to the fact that training is to be accorded corresponding to the vacancies, we do not think that, merely by getting the training, they would automatically get a right to be selected. This would render the exercise to be conducted by the Director General at the State level an exercise in futility. In fact, Rule 15 provides for selection on the basis of marks obtained in the training. It is also pointed out by Mr. Paresh Tripathi, learned Chief Standing Counsel that there was a selection in the year 2010 and it is not clear as to why the appellants were not selected. We would think that all that we need to say in this appeal is that the selection will take place subject to the condition that Intermediate holders with background in Arts, who have passed ANM Course, will be excluded and further that the selection will take place as provided in the Rules. Subject to the same, Special Appeal No. 353 of 2017 will stand dismissed.
4671. The resultant position is that all the appeals filed with leave, as well as Special Appeal No. 150 of 2017, will stand dismissed. Writ Petition (S/S) No. 1577 of 2011 will also stand dismissed.
72. Coming to Writ Petition (S/S) No. 1481 of 2017, there is a challenge to the Rules. We may, incidentally, notice that, in the writ petition, actually, what is sought is a certiorari. Petitioner, in fact, wanted to amend the writ petition. But, since we found that there is no merit otherwise in the writ petition, we feel that the said writ petition mounting a challenge to the Rules must fail. We must notice, in this regard, quite apart from absence of merit in the case of the petitioner, that the petitioner has thought it fit to challenge the Rules only at a very late stage. Reading of the Advertisement would make it clear to anyone that the selection is to be made in terms of the existing Rules. The petitioner willingly participated and did not challenge the Rules at that stage. As held by the Apex Court in Motor General Traders & another vs. State of Andhra Pradesh & others, reported in (1984) 1 SCC 222, time may not run in favour of the statute. It is a matter, as held by the Apex Court, which will also be borne in mind when a challenge is raised belatedly to the Rules. But, we have also seen that, in this case, the petitioner has not established a case on merits to strike down the Rules. Accordingly, the said writ petition also stands dismissed.
73. Though an oral request is made by Mr. Prabhat Bohara, learned counsel for the appellants, for issuance of a Certificate under Article 134- A, we do not think that such a Certificate is to be granted. The request is, accordingly, rejected.
(Alok Singh, J.) (K.M. Joseph, C. J.)
07.07.2017 07.07.2017
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