Central Administrative Tribunal - Delhi
Deepika vs The Delhi Subordinate Services on 13 April, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH: NEW DELHI O.A. No.3429/2011 Judgment reserved on 21.03.2012 Judgment pronounced on 13.04.2012 Honble Mr. G. George Paracken, Member (J) Honble Mr. Sudhir Kumar, Member (A) Deepika D/o Sh. Mahaveer Singh R/o House No. 168, Vill. Mungeshpur P.O. Kutabgarh, Delhi-110039. -Applicant (By Advocate: Shri G.D. Bhandari) Versus 1. The Delhi Subordinate Services Selection Board (DSSSB), through The Secretary, Delhi Subordinate Services Selection Board, FC-18 Karkardooma Institutional Area, Delhi-110092. 2. The Commissioner Municipal Corporation of Delhi, Town Hall, Delhi. 3. The Chief Secretary Govt. of NCT Delhi. -Respondents (By Advocate: Ms. Alka Sharma) O R D E R
Mr. Sudhir Kumar, Member (A) The applicant, in this case, had applied for a job in response to the advertisement in Employment News dated 1-7 September 2007 through which the Respondent No.1 Delhi Subordinate Services Selection Board (DSSSB) had called applications for the posts of Auxiliary Nurse/Midwife for Municipal Corporation of Delhi, by stating the number of vacancies, essential qualifications etc. as follows:-
AUXILIARY NURSE/MIDWIFE, MUNICIPAL CORPORATION OF DELHI Post Code-07/2007 NUMBER OF VACANCIES- 100(UR-50,OBC-27,SC-15,ST-08) Essential Qualifications (i) Matric pass from a recognized University/Board/School or equivalent.
ii) Qualified Midwife registered with Nursing Council of India as Auxiliary Nurse/Midwife.
Desirable: (i) Professional experience in Government or Semi Government Hospitals, Nursing Home or Welfare Centre.
(ii) Working knowledge of Hindi.
Pay Scale: Rs.4000-6000/- Group C Period of Probation: 2 years Age Limit between 18 and 27 years (Relaxable for SC/ST-05 years, OBC-03 years)
2. The applicant before us is aggrieved by the actions of the respondents in rejecting her candidature for the posts as advertised above, and has sought reliefs as follows:-
8(i) set aside and quash the Respondents decision/action Annexure A of rejecting the applicants candidature and extend the benefits of consideration for appointment as ANM as done in case of Monika Annexure B similar situate persons, deeming the qualifications/post of MPHW as replacement for the post of ANM in terms of Kartar Singhs Committees recommendations, so accepted by the Govt. of India and also in terms of Delhi High Court judgment in Lajwanti vs. GNCT case.
(ii) direct/command the Respondents to declare the applicants result and appoint her as Auxiliary Nurse/Midwife, ANM, Gr. Rs.4000-6000 from the date other candidates of the same selection group, have been appointed with all consequential benefits of pay protection etc.
(iii) any other relief deemed fit and proper in the facts and circumstances of the case, may also be granted in favour of the applicant alongwith heavy costs against the Respondents, in the interest of justice.
3. The applicant had filed this Original Application on 19.09.2011 by annexing as the impugned order Annexure-A (page-18), which is an information under the Right to Information (RTI) Act,2005, supplied to Shri Mahaveer Singh, the father of the applicant, through RTI Diary No. 1652 dated 10.08.2011, by the office of the Respondent No.1. This reply does not give the details of the questions, which the applicant has filed separately at Annexure A-3 (pages 23 & 24) of the OA, signed by her father, in reply to which this impugned information was supplied. In support of her contention, the applicant has relied upon the judgment order in the case of Monika vs. Delhi Subordinate Services, Selection Board & Others, decided on 09.09.2009 in OA No. 1248/2009, a copy of which has been filed by her at pages 19 & 20 of the OA. Apparently, that case also was decided on the basis of an RTI information reply obtained by Ms. Monika, the applicant of that OA, which information reply the present applicant has filed as Annexure A-4 dated 05.02.2009.
4. The case of the applicant herein is that she had passed Delhi Secondary School Examination, 1999, Central Board of Secondary Education, Delhi Senior School Certificate Examination, 2001, and had then attended the course of training at SOS School of Nursing, Faridabad, from September, 2001 to March, 2003, and had thereafter passed the examination for Multipurpose Health Workers (Female) (MPHW (F), in short), conducted by the Haryana Nurses Registration Council in April, 2003, as per the certificate produced by her at Annexure A-8 dated 11.08.2003. She registered herself with the Haryana Nurses Registration Council as a Multipurpose Health Worker (Female) [MPHW (F)] vide Registration No. 8276, and then a No Objection Certificate was issued by the Haryana Council for her registration with the Delhi Nursing Council, through Annexure A-9 dated 21.04.2004. Based upon that No Objection Certificate, the Delhi Nursing Council issued a Certificate of Registration to her dated 03.02.2004, the last portion of which stated as follows:-
...and is admitted in the ANM Register maintained under the provisions of the Delhi Nursing Council Act, 1997 (Delhi Act No.3 of 1999) as a Registered Auxiliary Nurse Midwife/MPHW(F)/LHV/Health Supervisor.
The number assigned to her in the Register is: 879.
5. This entitled her to work on contractual basis at the Maternity and Child Welfare Centre Bapprola under the Municipal Corporation of Delhi as per Annexure A-10 dated 20.07.2011. At the examination conducted by the Respondent No.1, the applicant had obtained marks, as per the information supplied to her father under the RTI Act through Annexure A-11 dated 24.01.2011, as follows:-
Part I 95/200Part II 134/200.
6. In para 8(i) of her prayer, as cited in para 2 above, the applicant has relied upon the report of Kartar Singh Committee, an extract of which has been re-produced by her at Annexure A-12, and its main recommendations, which were accepted by the Government, have been described in the Annexure as follows:-
a) That the present Auxiliary Nurse Midwives to be replaced by the newly designated Female Health Workers, and the present-day Basic Health Workers, Malaria Surveillance Workers, Vaccinators, Health Education Assistants (Trachoma) and the Family Planning Health Assistants to be replaced by Male Health Workers; (b) The Programme for having multipurpose workers to be first introduced in areas, where malaria is in maintenance phase and smallpox has been controlled and later to other areas as malaria passes into maintenance phase or smallpox controlled. (c) For proper coverage, there should be one Primary Health Centre for a population of 50,000; (d) Each Primary Health Centre should be divided into 16 sub-centre, each having a population of about 3,000 to 3,500 depending upon topography and means of communications; (e) Each sub-centre to be staffed by a term of one male and one female health worker, (f) There should be a male health supervisor to supervise the work of 4 female health workers; (g) The present-day lady health visitors to be designated as Female Health Supervisors; and (h) The doctor in charge of a primary health centre should have the area.
7. The applicant has also filed an Annexure A-13, a part of the Parks Text Book on Preventive and Social Medicine 17 Edition, in which it has been mentioned that in the National Programme of Minimum Needs incorporated in the Fifth Five Year Plan, the report of the Kartar Singh Committee was taken note of, which reads as follows:-
(3). The Kartar Singh Committee submitted its report, recommending the formation of a new cadre of health workers designated Multi-purpose Health Workers for the delivery of health, family planning and nutrition services to the rural communities, who will replace in course of time the basic health workers, family planning health assistants, auxiliary-nurse-mid-wives etc.
8. Although it is not related with her case, but related only to the case of Ms. Monika, the applicant has filed at Annexure A-14, a generalized certificate To Whom So Ever It May Concern, in which the Registrar of the Haryana Nurses Registration Council has stated that MPHW (F) and ANM are same and equally valid as per I.N.C. (i.e. Indian Nursing Council).
9. Reliance was placed by the learned counsel for the applicant on the judgment in Ms. Monikas case, delivered on 09.09.2009, as mentioned above, in which it was mentioned by the Bench that the Honble High Court of Delhi has in Writ Petition No. 8905/2007 in Lajwanti Vs. Govt. of NCT, observed that MPHW has been held as apt for appointment as Auxiliary Nurse/Midwife, ANM and in those terms, the directions had been issued in the OA filed by the said Ms. Monika. We have not had the benefit of perusing the cited judgment of the Honble Delhi High Court, as it was not filed before us by either of the parties.
10. The respondents contested the case vehemently. The first ground of the respondents was that there was no impugned order against the applicant, and only the information obtained by the applicants father under the RTI Act has been impugned in the instant case, and that this Tribunal may not like to act as an Appellate Authority under the RTI Act, 2005.
11. The second ground was that the applicant had appeared in response to the Advertisement, which was published in September, 2007, the examination in respect of which was conducted on 03.05.2008, and the result was declared on 13.08.2008. If the applicant was aggrieved by the result, she could have filed her OA in terms of Section 21 of the Administrative Tribunals Act, 1985, by 12.08.2009, which she has not done and the present application having been filed only on 19.09.2011 is barred by limitation and has to be dismissed in limine, by application of the sit-back rule.
12. It was further mentioned that even the first application under the RTI Act, 2005, filed by her father was much later after the actual declaration of the result of the examination, and that the date of receipt of information by the applicant under the RTI Act, 2005, would not extend the period of limitation. It was further submitted that repeated representations do not revive limitation. In this context, respondents cited the judgment of the Honble High Court dated 13.05.2001 in Writ Petition (Civil) No. 2610/2011 (T.K. Bhardwaj v. Director General of Audit & Others), in which the Honble Delhi High Court had followed its own order in the case of Dr. Satya Prakash v. Government of NCT of Delhi and Others, ILR (2009) VI Delhi 119, to reiterate that repeated representations do not extend the period of limitation.
13. It was further submitted by the respondents that the applicant and her father have only filed applications under the RTI Act, 2005, but have not made any representation to the respondents for the redressal of their grievances directly, and in that sense the applicant in this case has not exhausted the alternative departmental remedies available to her in terms of the Apex Court decision in S.S. Rathore v. State of M.P., AIR 1990 SC 10. It was also submitted by the respondents that the applicant has not come with clean hands before this Tribunal, in that the actual date of conduct of the examination has been suppressed by the applicant, and she has only tried to build up her case on the basis of the information received by her father under the RTI Act.
14. Further, on the merits of the case, it was mentioned that when the Eligibility Criteria in the Advertisement has been specifically mentioned, the requirement of a qualified Midwife, registered with the Nursing Council of India as an Auxiliary Nurse/Midwife, is of utmost consequence, and since the applicant possessed only the registration as a Multipurpose Health Worker (F) [MPHW(F)], she did not fulfill the essential eligibility criteria prescribed, and therefore her application was rightly rejected. In respect of the initial Admit Card having been issued to the applicant, it was submitted that the Respondent No.1 had issued Admit Cards to all the applicants, without any pre-scrutiny of their eligibility, as the eligibility is examined later in detail, and only when such scrutiny was taken up later, it was discovered that the applicant did not possess the essential eligibility criteria. In this respect, the respondents had relied upon the judgment dated 27.03.2008 in OA No. 630/2008 with OA NO.631/2008, Surender Kumar vs. Delhi Subordinate Services Selection Board in which it was held by this Tribunal that merely because the applicant was allowed to appear in the written and driving tests would not show that he was eligible for appointment under reserved category for which he (Surender Kumar) had applied for.
15. It was submitted that detailed physical scrutiny of the Application Forms is carried out only in respect of those candidates who come within the zone of consideration as per their marks in Part-II of their examination. It was further submitted that when the Advertisement as published had prescribed a specific essential qualification, it was not open to the respondents to change the criteria for recruitment, and the respondents do not have any discretion to change the same to accommodate the applicant. In support of these arguments, the respondents had relied upon 11 Judgments cited in the reply written statement, which need not be re-produced here.
16. It was submitted that it is trite law that when a particular thing is prescribed to be done in a particular manner as per the Rules, it has to be done in the same manner or not at all, and that the Honble Apex Court has laid down in a catena of cases that all appointments to public posts have to be made strictly in accordance with the eligibility conditions laid down for such appointment, and even the Government does not have the powers to relax the basic or fundamental rules of recruitment for such posts, and in support of this contention, the respondents had cited the Honble Apex Court judgment in Suraj Parkash Gupta & Others vs. State of J&K & Others, AIR 2000 SC 2386; JT 2000 (5) SC 413. It was further submitted that the same question of permitting departure from the qualifications as laid down for appointment was again discussed by the Honble Supreme Court in the case of R.S. Garg v. State of U.P. & Others, AIR 2006 SC 2912, in which, after considering Suraj Parkash Guptas case (supra), the Honble Apex Court had said that it would not be a mere irregularity, when a person not eligible would be considered for promotion, and when an eligibility criteria has been provided for in the Rules for the purpose, the same must be strictly complied with, as any deviation or departure therefrom would render the action void. It was further submitted that the Honble Apex Court has said in the case of State of U.P. v. Neeraj Awasthi and Others, (2006) 1 SCC 667, that the Executive does not have the powers to make recruitment dehors the statutory rules.
17. In the result, it was submitted that neither there is any provision to relax any of the provisions, much less the essential qualifications prescribed for the post advertised, nor has the same been relaxed in the instant case. A number of other judgments of the Honble Apex Court were cited by the respondents in support of their contention that the essential eligibility criteria laid down could not have been deviated from by the respondents in the case of the applicant. It was, therefore, submitted that in view of the well settled law in this regard, the applicant could not have been given an offer of appointment, as the Respondent No.1 was duty bound to follow the process as per the Selection Rules prescribed. After giving para-wise comments on the OA on the same lines, respondents had prayed that as the applicant has not been able to make out a case in her favour, the OA is liable to rejected, with an exemplary cost.
18. Heard. We have given our anxious consideration to the facts of the case. The crux of the matter lies in as to whether a Multipurpose Health Worker has the training for, and can perform the midwifery functions of Auxiliary Nurse/Midwife for assisting child-births, and providing pre-natal and post natal care to the expectant and lactating mothers, and the new-born babies, or not. The report of the Kartar Singh Committee, cited by the applicant herself, mentions that the Government of India had accepted the proposal for the cadre of Auxiliary Nurse/Midwife to be gradually replaced by a new cadre of even more comprehensively trained Female Health Workers, and the author of the Parks Text Book has described/paraphrased it to state that the Kartar Singh Committee had recommended the formation of a new cadre of health workers designated as Multipurpose Health Workers, for the delivery of health, family planning, and nutrition services to the rural communities, which is not the same as per the extract of the Kartar Singh Committee produced at Annexures A-12 & A-13(pages 35&36). We have only the word of Haryana Nurses Registration Council as given in a bland To Whom So Ever It May Concern Annexure A-14 (page-37 of the OA), which states that MPHW (f) and ANM are the same and equally valid as per the I.N.C. The very insipid and general nature of this certificate does not establish anything as a certainty, which we may be bound to follow. The applicant has not been able to produce any Rule or Regulation of the Nursing Council of India itself, to show that these two designations/qualifications are exactly equivalent, and do not differ materially in their training & qualifications. The essential qualifications for the advertised posts, as re-produced above in the opening paragraph clearly stated that the applicant should be qualified as a Midwife, and must be registered with the Nursing Council of India as an Auxiliary Nurse/Midwife.
19. The applicant obviously does not possess both these essential qualifications. We also see that the Delhi Nursing Council itself makes a distinction between four different categories of persons who may be registered with them as either Auxiliary Nurse Midwife, or a MPHW(F), or a LHV, or as a Health Supervisor. If all the four designations and qualifications were equal, it was not essential for the Delhi Nursing Council to have stuck out the three other categories of Auxiliary Nurse Midwife, LHV and Health Supervisor, while issuing the certificate of Registration to the applicant in the category of MPHW(F), which they have done through Annexure A-9.
20. The basic job or task of a Midwife is to assist in child-delivery, and to provide pre-natal and post-natal care to the expectant/lactating mother, and to the new born child. The applicant has nowhere been able to establish or prove that the theoretical course of Multipurpose Health Worker had provided to her full and complete hands on training in all the aspects of providing pre-natal and post-natal care to the expectant/lactating mothers, and to the new born children. Merely a bland statement by the Haryana Nurses Registration Council that MPHW and ANM are similar would not come to the rescue of the applicant. The skilled process of assisting delivery is a specialized training in midwifery, which has to be specifically imparted to the Midwives, and nowhere it has been brought on record that this aspect was covered in the educational qualifications of Multipurpose Health Workers, in respect of which the Haryana Nurses Registration Council had issued the applicant a Certificate of Registration dated 11.08.2003.
21. The applicant has also not produced any Certificate of Registration with the Nursing Council of India, which was another essential qualification mentioned in their Advertisement itself.
22. In the face of the numerous judgments of the Honble Apex Court cited by the respondents, we are unable to be persuaded by the applicant that she can be allowed the benefit of the judgment and order dated 09.09.2009 in OA No.1249/2009, and the judgment of the Honble High Court of Delhi in the case of Lajwanti vs. Govt. of NCT. Being anxious about the well being of the expectant and lactating mothers and their new born children, we do not think that a person not fully qualified can be allowed to usurp an appointment merely because somebody else akin to her had been given an appointment, apparently without a full consideration of the facts of the candidature. We also do not have the full details regarding the qualification of the said Ms. Monika, whose case the applicant has cited, or the full details of the case of Lajwanti, whose case was considered by the Honble High Court of Delhi. Therefore, the case does not lie on merits.
23. We also consider that the applicant has approached this Tribunal belatedly, and in case of her being aggrieved, she should have approached this Tribunal in time, soon after her result was declared and her representations made to the authorities, if any, had remained unanswered thereafter. The Honble Apex Court has held that in case the applicant sits back to wait for the decision in a similar or parallel case, and fails to agitate his or her own rights within time, the sit back rule would apply against him or her, and he or she cannot be given the benefit of any relief which had not been agitated in time. Therefore, on the point of limitation also, her OA is not maintainable.
24. The OA is, therefore, rejected, but there shall be no order as to costs.
(SUDHIR KUMAR) (G. GEORGE PARACKEN)
MEMBER (A) MEMBER (J)
cc.