Document Fragment View

Matching Fragments

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 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 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.