Smt. Guddi Sagar vs State Of U.P. Thru Prin.Secy. ...
2022 Latest Caselaw 9787 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 6				   Reserved on 09.05.2022					     	      Delivered on 10.08.2022
 
Case :- WRIT - A No. - 20138 of 2019
 
Petitioner :- Smt. Guddi Sagar
 
Respondent :- State Of U.P. Thru Prin.Secy. Medical And Health
 
Lko. And Ors.
 
Counsel for Petitioner :- Amarendra Pratap Singh
 
Counsel for Respondent :- C.S.C.,Ashok Shukla
 

 
Hon'ble Irshad Ali,J.

1: Heard Sri A.P. Singh, learned Senior Advocate assisted by Sri Amarendra Pratap Singh, learned counsel for the petitioner, learned Standing Counsel for respondent Nos.1, 2 and 3 and Sri Ashok Shukla, learned counsel for respondent No.4.

2: By means of the present writ petition, the petitioner is challenging the order dated 11.4.2019, contained as Annexure-1 to the writ petition and order dated 17.7.2019, issued by the State Government insofar as it provides qualification for high school (science) for appointment on the post of Staff Nurse (Female) with all consequential benefits and cancellation of claim of the petitioner for appointment on the post of Staff Nurse with the further prayer to issue writ of mandamus to the respondents to appoint the petitioner on the post of Staff Nurse without reference to the qualification of 'Education' subject and to grant relaxation in Education (Science) with further direction to the Public Service Commission to verify the documents by submitting the same to the State Government and to appoint the petitioner on the post of Staff Nurse (Female).

3: Brief fact of the case is that the petitioner passed high school examination in the year 1997 with Hindi, English, Home Science, Drawing, Social Science and Painting as subjects. She passed intermediate examination in the year 1999 with Elementary Hindi, English, Home Science, Drawing and Sociology as subjects. Thereafter, she completed her B.A. and subsequently, M.A. Part-II examination in the year 2004.

4: On the basis of qualification of high school and intermediate, the petitioner was admitted for pursuing Diploma course in General Nursing and Midwifery. Thereafter, she was awarded Diploma in General Nursing and Midwifery by U.P. State Medical Faculty and was registered with U.P. Nursing and Midwifery Council on 12.6.2012.

5: In pursuance to the advertisement, on the basis of recommendation of duly constituted selection committee, she was appointed on the post of Staff Nurse (Female) on contract basis vide order dated 7.1.2013 by the Chief Medical Officer, Shahjahanpur, wherein she joined on 18.1.2013. Since then, she is continuing on the said post on contract basis.

6: The Uttar Pradesh Public Service Commission (in short, 'the Commission"), Allahabad issued an advertisement on 12.7.2017 for recruitment on the post of Staff Nurse (Male/ Female) by inviting applications from eligible and qualified candidates. The petitioner, being fully eligible and qualified applied on 31.1.2017. Thereafter, the petitioner appeared in the written examination and the result of the same was declared on 1.9.2018.

7: On the basis of result of the said examination, the Commission issued a press note requiring the selected candidates including the petitioner to appear before the Commission. Thereafter, the petitioner appeared before the Commission on 20.9.2018 alongwith the required documents.

8: Submission of learned counsel for the petitioner is that from perusal of Rule 10 of U.P. Subordinate Nursing (Non-Gazetted) Service Rules, 1979, it provides that a candidate for recruitment on the post of Staff Nurse must have passed high school and intermediate education, possesses the Diploma in Medical and Surgical Nursing registered with U.P. Nursing and Midwifery Council as also possesses the certificate of registration of Nursing from U.P. Nursing and Midwifery Council with working knowledge in Hindi was the qualification on the basis of which the petitioner was admitted in Diploma course of Nursing.

9: It is submitted that U.P. Subordinate Nursing (Non-Gazetted) Service (1st amendment) Rules, 1999 was promulgated, whereby the educational qualification was provided that a candidate must have passed the high school examination with Science and passed intermediate examination or equivalent thereto. It is further submitted that U.P. Subordinate Nursing (Non-Gazetted) Service (IVth amendment) Rules, 2016 have been notified on 11.2.2016, whereby it has been provided that the persons working as Staff Nurse (Female) on contract basis in Medical and Health Services, U.P. and who possess the qualification prescribed in Rule 10 shall be eligible for being considered for direct recruitment with further provision that only for the first selection to be made after commencement of U.P. Subordinate Nursing (Non-Gazetted) Service (IIIrd amendment) Rules, 2010, the upper age limit for such candidate who possess the qualification prescribed in Rule 10 as it is existed prior to commencement of U.P. Subordinate Nursing (Non-Gazetted) Service (1st amendment) Rules, 1999 who are bonded and trained shall be greater for such number of years as may be necessary for enabling them to become eligible for being considered for direct recruitment.

10: Learned Senior Advocate submits that the Rules/ Regulations relating to admission in Diploma Course in General Nursing and Midwifery have not been amended so far. He added that high school with Science is not a condition precedent for admission and grant of Diploma in the aforesaid course and therefore, the petitioner cannot be denied appointment on the post of Staff Nurse (Female) on the ground of not having Science in high school.

11: He submits that identical controversy has been decided by this Court in bunch of writ petitions, with leading Writ Petition No.190 (S/S) of 2013, vide order dated 1.2.2013, whereby it has been provided that the writ petitioners of the said writ petition shall be granted relaxation in qualification. Against the aforesaid judgment and order passed by this Court, review petition was filed, which has also been decided vide judgment and order dated 21.10.2013, whereby it was provided that all those persons who are selected as trainee prescribing high school as minimum education qualification and successfully completed training and are enrolled with U.P. Nursing and Midwifery Council and are working on contract basis, shall be considered in the ongoing process for appointment against which Special Appeal was filed by the State, which has also been dismissed vide judgment and order dated 17.12.2013, against which, Special Leave Petition was filed in the Hon'ble Supreme Court, which has been dismissed. He submits that all the judgments and orders aforesaid have been annexed with the writ petition as Annexure Nos.15 to 18 respectively.

12: Learned Senior Lawyer further stated that another identical controversy was also also raised before this Court in bunch of writ petitions with leading Writ Petition No.60245 (S/S) of 2016, wherein it has been held that the persons who have completed training, form one class and there can be no discrimination on the basis of educational subject. The requirement of doctrine of reasonable classification is that such classification must bear a nexus to the object sought to be achieved. It is further held in the judgment that such discrimination is violative of Articles 14 and 16 of Constitution of India.

13: He submits that qualification of high school with Science has never been insisted upon or made necessary condition precedent for Diploma Course in General Nursing and Midwifery and therefore, the petitioner cannot be denied appointment on the ground that she has not completed high school with Science subject, although she has completed high school with Home Science. He submits that the petitioner fairly submitted all the documents relating to her educational qualification in which it was clearly pointed out that she has completed high school with Home Science and she has not acquired high school with Science. Thereafter, she appeared in the examination and was subsequently, declared successful and therefore, the petitioner is entitled for appointment on the post of Staff Nurse (Female) without reference to the qualification of high school (Science).

14: On the other hand, learned Additional Chief Standing Counsel submits that earlier the petitioner filed Writ Petition No.30520 (S/S) of 2018 before this Court for relaxation in educational qualification as well as for appointment on the post of Staff Nurse and the aforesaid writ petition was finally disposed of vide judgment and order dated 20.2.2019 with the direction to the respondent No.1 to consider and decide the pending representation of the petitioner dated 25.9.2018. In compliance of the aforesaid order, representation of the petitioner was decided, considering the relevant government orders and relevant rules, vide impugned order dated 11.4.2019 in accordance with law.

15: He further submits that the impugned order is well speaking and reasoned order and the same has been passed in accordance with law and as such the petitioner is not entitled for any relief and the instant writ petition has been filed by the petitioner on the basis of wrong and misleading facts. He next submits that in pursuance to the aforesaid impugned order, the Secretary, U.P. Public Service Commission, Prayagraj has cancelled the conditional selection of the petitioner on the post of Staff Nurse vide letter dated 24.8.2019 for the reasons that the petitioner is not possessing Science subject in high school.

16: Having heard the rival contention of learned counsel for the parties, I perused the material on record as well as the Rules amended time to time.

17: To resolve the controversy, Rule 10 of U.P. Subordinate Nursing (Non-Gazetted) Service Rules, 1979 is quoted below :-

"10- LVkQ ulZ ds in ij HkrhZ ds fy, vH;FkhZ [email protected] ikl & 'kSf{kd vgZrk;sa

¼,d½ ek/;fed f'k{kk ifj"kn~] mRRkj izns'k dh gkbZ Ldwy ijh{kk ;k mlds led{k ljdkj }kjk ekU;rk izkIr dksbZ ijh{kk esa mRRkh.kZ gksuk pkfg,A

¼nks½ la;qDr izkUr ulZ rFkk /kk=h ifj"kn~ es jftLVªhdj.k ds ;ksX; fpfDRlk vkSj 'kY;deZ uflZax dk fMIyksek gksA

¼rhu½ la;qDr izkUr ulZ rFkk /kk=h ifj"kn~ esa jftLVªdhj.k ds ;ksX;

/kkf= deZ dk fMIyksek gksA

¼pkj½ la;qDr izkUr ulZ rFkk /kk=h ifj"kn~ ls ulZ vkSj /kk=h ds :i esa jftLVªhdj.k dk izek.k&i= gksA

¼ikap½ fgUnh dk dke pykÅ Kku gksA"

18: Rule 10 of U.P. Subordinate Nursing (Non-Gazetted) Service (1st amendment) Rules, 1999 is quoted below :-

"10& 'kSf{kd vgZrk,a&

¼1½ LVkQ ulZ ¼efgyk½ ds in ij lh/kh HkrhZ ds fy, vH;FkhZ ds ikl&

¼,d½ ek/;fed f'k{kk ifj"kn mRRkj izns'k ls foKku ds lkFk gkbZ Ldwy ijh{kk vkSj b.VjehfM,V ijh{kk ;k ljdkj }kjk mlds le{k ekU;rk izkIr dksbZ ijh{kk mRRkh.kZ gksuk pkfg,A"

19: Rule 10 of U.P. Subordinate Nursing (Non-Gazetted) Service (IVth amendment) Rules, 2016 is quoted below :-

"'kSf{kd vgZrk,a 10 ¼1½&LVkQ ulZ ¼efgyk½ ds in ij lh/kh HkrhZ ds fy, vH;FkhZ ds ikl&

¼,d½ ek/;fed f'k{kk ifj"kn~] mRRkj izns'k ls foKku ds lkFk gkbZ Ldwy ijh{kk vkSj b.VjehfM;V ijh{kk ;k ljdkj }kjk mlds led{k ekU;rk izkIr dksbZ ijh{kk mRRkh.kZ gksuk pkfg,A

¼nks½ mRRkj izns'k ulZ rFkk /kk=h ifj"kn esa jftLVªhdj.k ds ;ksX; lkekU; mipkfjdk ,oa izlwfr izf'k{k.k esa fMIyksek vFkok uflZax esa Lukrd ¼ch0,l0lh0½ mikf/k gksA

¼rhu½ mRrj izns'k ulZ rFkk /kk=h ifj"kn ls ulZ vkSj /kk=h ds :i esa jftLVªhdj.k dk izke.k &i= gksA"

20: Eligibility for appointment of 'Health Worker (Female/Male)' was completion of one and half year training course of Basic Health Worker (Female/Male) (for Female 6 months training relating to deliveries) conducted by Uttar Pradesh Nurses and Midwives Council, Lucknow and registration with Uttar Pradesh Nurses and Midwives Council, Lucknow. Note appended to Rule-5 of the Rules provided that Health Workers (Male) and Health Workers (Female) who had successfully completed prescribed training of Basic Health Worker (Male) and (Female) on or before commencement of these Rules shall be considered for appointment first in order of batch-wise seniority, arranged on the basis of marks obtained by them in the training and Commission shall not hold any recruitment unless all such who were willing to join the service had been considered for appointment. Rules 17 (2) and (3) of Amendment Rules 1998, provides similar provisions that the candidates who have completed training during 1986 to 1991, be appointed first, batch-wise and unless all such who were willing to join the service, had been considered for appointment, Commission shall not hold any recruitment.

21: The vacancies of Basic Health Workers (Female) for direct recruitment as advertised on 19.11.2012 was challenged in Writ Petition No. 190 (S/S) of 2013 and other connected writ petitions, in which, this Court, by judgment dated 01.02.2013, held that Basic Health Workers (Female) working on contract basis were entitled for appointments, giving age relaxation as they were eligible. State of U.P. did not challenge judgment dated 01.02.2013. Some similarly situated persons, who had completed training of Basic Health Workers (Female) but were having educational qualification as High School, filed Review Petition Nos. 92 and D-560 of 2013, which were also allowed by judgment dated 21.10.2013. In Counter Affidavit filed on behalf of the respondents, it is admitted that judgment dated 01.02.2013 was not challenged. Special Appeal Defective No. 848 of 2013 was filed against judgment dated 21.10.2013 but it was dismissed by judgment dated 17.12.2013. Special Leave to Appeal (C) No. 8302 of 2014, filed against aforesaid orders has been dismissed on 04.08.2014. But the arguments on behalf of the respondents is that Note appended to Rule-5 of the Rules and Rule 17 (2) and (3) of the Rules as amended in 1998 had limited application to the candidate who had completed training before 05.09.1997 or during 1986 to 1991. This Court has held that judgment dated 21.10.2013 should not form precedence as such the petitioners cannot claim benefit on its basis.

22: By Amended Rules, 1998, Rule-14-A has been added, making it mandatory for selection of the candidates for training according to the provisions of selection for appointment of a direct recruitment and number of vacancies for training should be in consonance of number of vacancies for direct recruitment. Source of recruitment for appointment of 'Health Worker (Female/Male)' as provided under Rule-5 is completion of one and a half year training course of Basic Health Worker (Female/Male) (for Female 6 months training relating to deliveries) conducted by Uttar Pradesh Nurses and Midwives Council, Lucknow and registration with Uttar Pradesh Nurses and Midwives Council, Lucknow. Purpose of completing training course of Basic Health Worker (Female/Male) (for Female 6 months training relating to deliveries) conducted by Uttar Pradesh Nurses and Midwives Council, Lucknow and registration with Uttar Pradesh Nurses and Midwives Council, Lucknow are not an empty formality. A combined reading of Rule-5 and Rule-14-A of Amended Rules, 1998 make it clear that purpose of selecting candidates for training conducted by Uttar Pradesh Nurses and Midwives Council, Lucknow, applying the selection process of direct recruitment and number of such trainees are limited to the vacancies available for direct appointment, their registration with Uttar Pradesh Nurses and Midwives Council, Lucknow, is to appoint on the basis of batch-wise seniority of training.

23: So far as educational qualification for training is concerned, in Notification dated 01.10.2016, due care has been taken of the amendment made by Uttar Pradesh Health Workers (Female/Male) Regulation Instruction, 2007. Essential qualification for appointment of 'Health Worker (Female/Male)' is completion of one and half year training course of Basic Health Worker (Female/Male) (for Female 6 months training relating to deliveries) conducted by Uttar Pradesh Nurses and Midwives Council, Lucknow and registration with Uttar Pradesh Nurses and Midwives Council, Lucknow. Once State Government permitted a candidate to complete training of Basic Health Worker (Female/Male), it cannot deny appointment on the basis of education which was necessary for training. The persons who have completed training, form one class and there can be no discrimination on the basis of educational subject. The requirement of the doctrine of reasonable classification is that such classification must bear a nexus to the objects sought to be achieved. The candidates have already completed required training and have become eligible to discharge duties of 'Health Worker (Female/Male). At the time of their selection for training, they were having requisite qualifications. At the time of appointment, there is no nexus to the object of job performed by 'Health Worker (Female/Male) to classify them on the basis of their subject in Intermediate Examination. Such a discrimination is arbitrary and violative of Article 14 of the Constitution. Age relaxation has already been granted.

24: Similar controversy has already been considered in Writ-A No.60245 of 2016 titled 'Priyanka Shukla and others v. State of U.P. and others' decided in bunch of writ petitions vide judgment and order dated 10.11.2017. Relevant portions of the judgment is quoted hereinbelow:

"9. I have considered the arguments of the counsel for the parties and examined the record. Eligibility for appointment of 'Health Worker (Female/Male)' was completion of one and half year training course of Basic Health Worker (Female/Male) (for Female 6 months training relating to deliveries) conducted by Uttar Pradesh Nurses and Midwives Council, Lucknow and registration with Uttar Pradesh Nurses and Midwives Council, Lucknow. Note appended to Rule-5 of the Rules provided that Health Workers (Male) and Health Workers (Female) who had successfully completed prescribed training of Basic Health Worker (Male) and (Female) on or before commencement of these Rules shall be considered for appointment first in order of batch-wise seniority, arranged on the basis of marks obtained by them in the training and Commission shall not hold any recruitment unless all such who were willing to join the service had been considered for appointment. Rules 17 (2) and (3) of Amendment Rules 1998, provides similar provisions that the candidates who have completed training during 1986 to 1991, be appointed first, batch-wise and unless all such who were willing to join the service, had been considered for appointment, Commission shall not hold any recruitment.

10. The vacancies of Basic Health Workers (Female) for direct recruitment as advertised on 19.11.2012 was challenged in Writ Petition No. 190 (S/S) of 2013 and other connected writ petitions, in which, this Court, by judgment dated 01.02.2013, held that Basic Health Workers (Female) working on contract basis were entitled for appointments, giving age relaxation as they were eligible. State of U.P. did not challenge judgment dated 01.02.2013. Some similarly situated persons, who had completed training of Basic Health Workers (Female) but were having educational qualification as High School, filed Review Petition Nos. 92 and D-560 of 2013, which were also allowed by judgment dated 21.10.2013. In Counter Affidavit filed on behalf of the respondents, it is admitted that judgment dated 01.02.2013 was not challenged. Special Appeal Defective No. 848 of 2013 was filed against judgment dated 21.10.2013 but it was dismissed by judgment dated 17.12.2013. Special Leave to Appeal (C) No. 8302 of 2014, filed against aforesaid orders has been dismissed on 04.08.2014. But the arguments on behalf of the respondents is that Note appended to Rule-5 of the Rules and Rule 17 (2) and (3) of the Rules as amended in 1998 had limited application to the candidate who had completed training before 05.09.1997 or during 1986 to 1991. This Court has held that judgment dated 21.10.2013 should not form precedence as such the petitioners cannot claim benefit on its basis.

11. By Amended Rules, 1998, Rule-14-A has been added, making it mandatory for selection of the candidates for training according to the provisions of selection for appointment of a direct recruitment and number of vacancies for training should be in consonance of number of vacancies for direct recruitment. Source of recruitment for appointment of 'Health Worker (Female/Male)' as provided under Rule-5 is completion of one and a half year training course of Basic Health Worker (Female/Male) (for Female 6 months training relating to deliveries) conducted by Uttar Pradesh Nurses and Midwives Council, Lucknow and registration with Uttar Pradesh Nurses and Midwives Council, Lucknow. Purpose of completing training course of Basic Health Worker (Female/Male) (for Female 6 months training relating to deliveries) conducted by Uttar Pradesh Nurses and Midwives Council, Lucknow and registration with Uttar Pradesh Nurses and Midwives Council, Lucknow are not an empty formality. A combined reading of Rule-5 and Rule-14-A of Amended Rules, 1998 make it clear that purpose of selecting candidates for training conducted by Uttar Pradesh Nurses and Midwives Council, Lucknow, applying the selection process of direct recruitment and number of such trainees are limited to the vacancies available for direct appointment, their registration with Uttar Pradesh Nurses and Midwives Council, Lucknow, is to appoint on the basis of batch-wise seniority of training.

12. So far as educational qualification for training is concerned, in Notification dated 01.10.2016, due care has been taken of the amendment made by Uttar Pradesh Health Workers (Female/Male) Regulation Instruction, 2007. Essential qualification for appointment of 'Health Worker (Female/Male)' is completion of one and half year training course of Basic Health Worker (Female/Male) (for Female 6 months training relating to deliveries) conducted by Uttar Pradesh Nurses and Midwives Council, Lucknow and registration with Uttar Pradesh Nurses and Midwives Council, Lucknow. Once State Government permitted a candidate to complete training of Basic Health Worker (Female/Male), it cannot deny appointment on the basis of education which was necessary for training. The persons who have completed training, form one class and there can be no discrimination on the basis of educational subject. The requirement of the doctrine of reasonable classification is that such classification must bear a nexus to the objects sought to be achieved. The candidates have already completed required training and have become eligible to discharge duties of 'Health Worker (Female/Male). At the time of their selection for training, they were having requisite qualifications. At the time of appointment, there is no nexus to the object of job performed by 'Health Worker (Female/Male) to classify them on the basis of their subject in Intermediate Examination. Such a discrimination is arbitrary and violative of Article 14 of the Constitution. Age relaxation has already been granted."

25: In the result, the writ petition succeeds and is hereby allowed. Respondents are directed to consider the claim of the petitioner for appointment on the post of Health Worker (Female) as advertised on 12.7.2017 on the basis of her educational qualifications prescribed at the time of admission in Diploma Course in General Nursing and Midwifery.

Order Date :- 10.8.2022

Gautam/ GK Sinha