Central Administrative Tribunal - Kolkata
Shivani Devi vs M/O Health And Family Welfare on 4 February, 2019
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■-J. CENTRAL ADMINISTRATIVE TRIBUNAL
KOLKATA BENCH
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No.O A/351/419/2017
KOLKATA
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Coram : Hon'ble Mrs.Bidisha Banerjee, Judicial Member
Hon'ble Dr.(Ms) Nandita Chatterjee, Administrative Member
Smt. Shivani Devi, W/o S. Satya Narayan,
R/o Nayagaon, Port Blair Tehsil
South Andaman
Applicant
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-Versus-
1. The Union of India, through the Secretary
to the Govt, of India, Ministry of Home
Affairs, New Delhi - 110 001;
2. The Union of India, through the Secretary
to the Govt, of India, Ministry of Health and
Family Welfare, Shastri Bhawan,
New Delhi - 110 001;
3. The Lieutenant Governor,
Andaman & Nicobar Islands,
Raj Niwas, Port Blair- 744101;
4. The Chief Secretary,
Andaman & Nicobar Administration,
Secretariat, Port Blair -744 101;
5. The Principal Secretary(Health),
Andaman & Nicobar Administration,
Secretariat, Port Blair -744 101;
6. The Director of Health Services, Andaman
& Nicobar Administration, Port Blair-744101;
7. Smt. Sukla Mistry(Biswas)
Staff Nurse
Presently posted at Primary Health Centre,
Tushnabad
Under respondent no.6
South Andaman District
Respondents
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For the applicant : Mr. G.B. Kumar, counsel
For the respondents : Mr. S. Samanta, counsel
Mr. N.A. Khan, counsel
Heard on: 19.12.2018 Order on : 4 • ^ ^ •
ORDER
Bidisha Banerjee, Judicial Member The matter is being heard out afresh on remand from the Hon'ble High Court in terms of the directions in WPCT.No.118/2018 and WPCT No.127/2018. The judgment of the'Hon'ble High Court is extracted below to the extent relevant and germane to-the lis> \ "It is here that the challenge launched, by the appointee to the same order becomes relevant.' AccordinR to the private respondent no.7 before the Tribunal, the Tribunal failed to assess the matter-on the basis of the law as it stood as on the date of the appointment or as~ on the date .of the / application. Ori behalf of itKe appointee, it is submitted that stale . 'notifications and circulars were relied upon by the- petitioner before the Tribunal arid the later notifications of 2009 were not looked into by the Tribunal.
However, there is no clear ground taken in such regard^n the petition.by the appointee challenging.the order.of the Tribunal. But since the order of the Tribunal, even without the appointee's petition, requires correction, the submission of the appointee in such regard Is taken into account so that complete justice can be done to the parties."
2. At hearing, the following admitted position-emanated'Or emerged from the pleadings of the parties:-
(ij . v On the date of making application'for the post in question, the private •respondent) Sukla Mistry had no valid Registration Certificate. The Certificate of the private respondent issued by the Mahakoshal Nurses Registration Council, Bhopal, which was valid upto 23rd July 2004(Annexure A/9) was renewed on 04.05.2006 to remain valid upto 03.05.2011. Thereafter, no renewal was sought for until May, 2017 when it was renewed again to remain valid upto 15.05.2022. 0
--j 3 ■ jj Yet. the respondents processed the application of the private respondent, Sukla Mistry, in absence of a valid registration certificate as Nurse, considered her for w ¥/ appointment, selected her and offered her appointment and even appointed her as Staff Nurse. In absence of any valid Registration Certificate from a recognised organisation, in normal course, such selection would not have been possible since possession of a valid Nursing Certificate was sine qua non to applying for the post of Staff Nurse. The conduct of the respondents in entertaining the application of the private respondent even without any valid registration certificate of Nursing, when the notification in question inarguably and indubitably points to a Registration Certificate of Nursing Council as mandatory document to be attached with the application, speaks volumes about favouritism shown to the private respondent.
(ii) However,, the Disability Certificate dated 19.08.2013(Annexure A/12) in respect of the private respondent was in order, being issued by a Medical Officer, since Disability Certificate by Medical Board was not mandatory and this fact is not in dispute in view of the circular of 2nd March, 2012 which reads as under:-
"CIRCULAR This for the information of all the In charges of Hospitals, CHCs and PHCs that under the People With Disability (PWD) Amendment Act 2009 the requirement of Medical Board has been done away with. And pre- : : requisite of Medical Board has been substituted with Medical Authority.
"The definition of medial authority has been given in the clause 2(p) of'the PWD act, 1995 as "Medical authority means any hospital or institution specified for the purposes of this Act by notification by the appropriate Govt."/Copy enclosed).
In View of the above amendment all concerned are directed that henceforth disability certificate may be issued at their end by the M. 0 l/c and need not to send to the Medical Board on routine basis. However, the other requirement for issuing the disability certificate to the PWD will remain same as per the Act.
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h This is for compliance of all."
3. Ld. Counsel for the private respondent would vociferously submit that the applicant was a person who, alike the said Sukla Mistry, did not possess a valid 9 i registration certificate herself and, therefore, she had no locus standi to challenge the appointment of the private respondent.
Rummaging through the papers, we noticed that the certificate issued to the applicant, Shivani Devi by the Karnataka State Nursing Council, was a Registration Certificate entitling her to use the title of "Registered Nurse/Midwife" without any restriction on its validity. The said certificate is extracted herein below:-
"This is to certify that Kum. Shivani Devi born on 20.08.1980 appeared for examination under Reg.No.98 DN 74 has satisfactorily completed the prescribed course of theoretical and practical training from 08.10.1998 to . 17.10.2001 in the institution School of Nursing Bowring & Lady Curzon Hospital, Bangalore and has passed the prescribed examination in Diploma Nursing was admitted on 18.12.2001 to the register maintained under provisions of Karnataka Nurses, Midwives & Health Visitors Act, 1961, and she is entitled to use the tile of Registered Nurse/Midwife."
Therefore, the submission of the Id. Counsel on behalf of the private respondent that the applicant did not possess a valid registration certificate, had no legs to stand upon.
4. At that juncture, Id. counsel would draw our attention to a bunch of papers received in response to RTI applications showing the date of renewal of registration in case of the applicant as "NIL", which, in our considered view, cannot be construed to mean that in absence of renewal, the registration certificate issued by Karnataka State Nursing Council (extracted supra) stood invalidated. Ld. counsel for the private respondent would also point to the ri statement as under:-
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'v 5 "As we have received the required details from your end and verified we inform you that there is no record of the renewal found with us hence this registration registration is inactive with us,"
isSS! Even such statement does not nullify the certificate issued by the Council W permitting the applicant to use the title of Registered Nurse without any specification on its validity which ought to be construed to mean a certificate to remain valid life long unless legally annulled as nothing contrary has been placed on record either by the official respondents or by the private respondent.
5. In support of his contention that even without a valid registration certificate the private respondent, Sukla Mistry could apply, Ld. counsel Mr. \ Samanta would place the decision of Hon'ble Supreme Court in Ashok Kumar Sonkar Vs. Union of India & Others reported in 2007(3)Supreme 956, wherein the appellant applied for the post of lecturer on 30.05.1995 and on that day, he had not completed his M.D. in Sharir Kriya. He passed the said examination only on 30.10.1995. He was allowed to appear before the Selection Committee, despite the fact that he did not hold that requisite qualification till the date of filing of such application. He, however, was selected and offered an appointment. Oh challenge by respondent 4, the 'Visitor' of the said University held that selection process was illegal and the selection proceeding was set aside. Writ petition filed by appellant was dismissed by the Hon'ble High Court. It was considered whether it was obligatory on the part of the Visitor to give an opportunity of hearing to appellant. It was held 'No'. "Being ineligible to be considered for appointment, it would have been a futile exercise to give appellant an opportunity of being heard." Hon'ble Apex Court held that "Possession of requisite educational qualification is mandatory, The same should not be uncertain. If an uncertainty is allowed to prevail, the employer would be flooded with applications of ineligible candidates. A cut-off date for the purpose of determining the eligibility of the candidates concerned, must, therefore, be fixed. In / I* 6 absence of any rule or any specific date having been fixed in the advertisement, the law, therefore, as held by this Court would be the last date for filing the application." Ld. counsel would further vociferously contend that the registration certificate which had lost its validity in 2011 was validated in 2017 and, therefore, such validity should relate back to the original period under the doctrine of relating back.
7. As already pointed out,..indisputably private respondent, Sukla Mistry did not possess a valid\egistration certificate as on the last date. The official
-* respondentsvfaiied to justify/bpw they .permitted the private respondent to be \ considered^for appointment and selected her without a valid registration certificate as on the date^of making application for the post in tfuestipn.
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Therefore, the respondentSHlIegaftylpermitfed'the private respondent 'to be •?
selected.and appointed' ignoringThe"case dfideserving canciidates.
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8.. Imview of revelations as supra/we hold that the appointment of the..private
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respondent was illegal and, ba^d in law/. liable^td be quashed and set aside. Hence, we quash the appointment order issued in favour of the private respondent,^Sukla Misty, who has been given all opportunity to place her case. . 9 Since it is not imdispute that the applicant possessed a valid Disability Certificate and even secured second position in terms of merit, the respondents shall duly consider her case in accordance with law, particularly, as relevant in the time of appointment of Staff Nurse with respect to vacancy notice dated 06.05.2015 (Annexure A-5 to the O.A.) and to convey their decisions to the applicant within a period of six weeks from the date of receipt of copy of this order.
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10. Accordingly the O.A. stands disposed of. No order as to costs.
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(Dr.Nandita Chatterjee) (Bidisha Barierjee)
Administrative Member Judicial Member
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