Delhi High Court
Sucheta vs All India Institute Of Medical ... on 6 October, 2022
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 28th September, 2022
Pronounced on: 06th October, 2022
+ W.P.(C) 13420/2022 & CM APPL. 40750/2022 (interim relief)
SUCHETA ..... Petitioner
Through: Mr. Santhosh Krishnan and Ms.
Deepshikha Sansanwal, Advocates.
versus
ALL INDIA INSTITUTE OF MEDICAL SCIENCE ..... Respondent
Through: Mr. V.S.R. Krishna and Mr. V.
Shashank Kumar, Advocates.
CORAM:
HON'BLE MR. JUSTICE SANJEEV NARULA
JUDGMENT
SANJEEV NARULA, J.:
1. Petitioner, a nurse employed as Nursing Tutor (Faculty Cadre) at
College of Nursing of Respondent - All India Institute of Medical Sciences,
New Delhi [hereinafter "AIIMS"] has impugned the Memorandum dated 12th
September, 2022 whereby she has been denied admission to M.Sc.
(Psychiatry Nursing) under the category of "In-service candidate", on the
ground of ineligibility.
BRIEF FACTS
Admission in M.Sc. Nursing course for 2021 session
2. Petitioner is employed with AIIMS as a Nurse since 2004. She
completed her B.Sc. (Hons.) Nursing course from AIIMS itself and enrolled
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as a Nurse with the Delhi Nursing Council and then as "Tutor in Nursing"
with AIIMS.
3. She applied for admission to M.Sc. (Paediatric Nursing) course under
the "In-service" category for 2021 session, appeared in the entrance
examination and obtained Rank 201. When she was not allotted the seat and
instead, another candidate who obtained a lower Rank of 232 was selected,
she made a representation to the Dean (Examination), AIIMS, vide letter
dated 21st August, 2021.
4. Vide Memorandum dated 31st August, 2021, Petitioner was granted
provisional admission to the aforesaid course, as an "In-service" candidate.1
Subsequently, vide Memorandum dated 15th September, 2021 her
provisional admission was cancelled and she was informed that "In-service"
reservation is only for "Nursing staff i.e. Nursing Officer. Hence, she is not
eligible for In-service (Paediatric Nursing) seat being Nursing Tutor, as per
existing eligibility criteria".
Admission in M.Sc. Nursing course for 2022 session
5. For the year 2022, Admission Notice was published on 29th April,
2022, followed by the Prospectus on 09th May, 2022 [hereinafter "the
Prospectus"]. Admission in M.Sc. (Nursing), M.Sc. courses and M.
In W.P.(C) 9413/2021 - filed by Ramgopal Sharma against denial of admission/disqualification. In the
said petition, AIIMS informed the Court (on 03rd September, 2021) that they have provisionally admitted
another candidate (Petitioner herein) in the second round of counselling and the Court, finding a prima
facie case in favour of Ramgopal Sharma, directed maintenance of status quo with regard to admission to
the Course in the "In-service" category. Vide final judgment dated 10th November, 2021 - the impugned
decision of AIIMS was set-aside and Ramgopal Sharma was directed to be admitted in the course against
the seat reserved for "In-service" category.
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Biotechnology. Under M.Sc. (Nursing) course, seven specialties are covered
which includes Psychiatry Nursing. In addition to the seats offered under
different categories, one seat in each specialty is reserved for AIIMS "In-
service" candidates.
6. Petitioner, employed as a Nursing Tutor (Faculty Cadre) applied for
M.Sc. (Psychiatry Nursing) course [hereinafter "Course"] and for this
purpose, she was granted a 'No Objection Certificate' on 20th May, 2022.
She secured 91.843 marks and an overall Rank 225, amongst 1378 qualified
candidates. Thereafter, AIIMS issued a Seat Allocation Slip on 08th
September, 2022 notifying her that she was allotted the category of "AIIMS
New Delhi In-service" against the Course selected by her.
7. Shortly thereafter, AIIMS issued the impugned Memorandum dated
12th September, 2022 [hereinafter "impugned notice"] whereby Petitioner
was intimated that her candidature cannot be considered against the seat
under "In-service" category, owing to her ineligibility. The said notice reads
as under: -
"MEMORANDUM
SUBJECT : Admission to M.Sc. (Psychiatry Nursing) Course at
the AIIMS, New Delhi for Aug., 2022 Session.
******
With reference to result Notification NO. 156/2022 dated 8.9.2022
Ms. Sucheta has been allotted M.Sc In-service (Psychiatry Nursing) seat.
At the time of document verification it has been observed that she has
been working as Nursing Tutor (Faculty Cadre) and the seats are reserved
for In-service candidates only.
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The matter has been examined by the Competent Authority,
accordingly she has not been considered against the above seat."
8. Aggrieved by the above decision, the instant petition has been filed.
CONTENTIONS OF THE PARTIES
Of Petitioner
9. Mr. Santhosh Krishnan, counsel for Petitioner, argues that the
impugned notice is arbitrary, unconstitutional, and thus, liable to be set-aside
for the following reasons: -
9.1. The term "In-service" is not defined in the Prospectus and it does not
disqualify "Nursing Tutors" working at AIIMS from availing
reservation for "In-service" candidates and sans distinction between
Nursing Tutors and Nursing Staff, disqualification cannot be assumed.
The term "In-service" must be given its natural and literal meaning.
Petitioner's application was processed as an "In-service" candidate till
issuance of the impugned notice on 12th September, 2022. AIIMS
cannot reasonably contend that till the final stage of admission i.e.,
"document verification", it is justified in disclosing the restrictive
condition as to eligibility.
9.2. The rationale for classification must be evident from the records and
also judicially sustainable. The documents annexed along with the
counter-affidavit filed by AIIMS only seek to provide existence of
such classification which cannot, operate as a valid justification.
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9.3. There is no statutory provision or subordinate legislation which
entails that the term "In-service" candidates would imply exclusion of
staff working at College of Nursing of AIIMS. Even if there is an
executive instruction issued to such effect, the same would be ultra
vires of the AIIMS Act, 1956 and AIIMS Regulations, 2019, which
does not provide for any distinction under "In-service" cadres (i.e.,
Nursing Tutors and Nursing Staff), as claimed by AIIMS by virtue of
impugned notice. The executive instruction cannot traverse beyond
the statute or subordinate legislation.
9.4. No estoppel can lie against Petitioner from challenging post-facto
disqualification by AIIMS notwithstanding the fact that she
participated in the selection process.2 Petitioner's provisional
admission last year (2021) was injuncted by this Court vide orders
dated 02nd September, 2021 and 03rd September, 2021 (in W.P.(C)
9413/2021). Considering that the said writ was allowed in favour of
Petitioner therein (viz. Mr. Ramgopal Sharma), Petitioner could not
possibly challenge the Memorandum dated 15th September, 2021.
Of AIIMS
10. Per contra, Mr. V.S.R. Krishna and Mr. V. Shashank Kumar, counsel
for AIIMS, make the following submissions: -
10.1. There is a distinction of cadres vis-à-vis Nursing Staff (i.e., Nursing
Officers) and Nursing Tutors and pursuant to a policy decision taken
by AIIMS, benefit of reservation for "In-service" seats extends to
Reliance is placed on Dr. (Major) Meeta Sahai v. State of Bihar & Ors., (2019) 20 SCC 17.
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Nursing Staff only. Petitioner, being a Nursing Tutor is thus,
ineligible for reservation under the "In-service" category. The
impugned notice cannot be faulted with since she was aware of her
disqualification for obtaining reservation qua "In-service" seat since
15th September, 2021 i.e., the date when the Memorandum was issued
by AIIMS withdrawing her admission. She is estopped from claiming
that she was unaware of her ineligibility since the same was disclosed
in year 2021 and she, nevertheless, went on to participate in
counselling as an "In-service" candidate in 2022. Thus, Petitioner,
being aware of the rules of examination, cannot now approach this
Court challenging the same.
10.2. Benefit of "In-service" reservation extended only to Nurse Staff/nurse
personnel, who were posted within the hospital and performing
clinical duties so they can upgrade their knowledge for better patient
care and the benefit was not applicable to Nurse Tutors/faculty cadre
since, they are primarily concerned with teaching academic courses.
There is reasonable and intelligible differentia between the two cadres
and in fact, even promotional hierarchies are different and granting
reservation to faculty cadre for M.Sc. (Nursing) course would require
consideration and assessment by AIIMS of various administrative
exigencies. Reliance is placed on a decision of the Apex Court in
State of Uttar Pradesh & Ors. v. Dinesh Singh Chauhan,3 to contend
that the classification under the "In-service" category is based on
reasonable and intelligible differentia since Nursing Staff at AIIMS
(2016) 9 SCC 749.
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are essentially in nature of "frontline workers" who are "involved in
patient care and treatment are being allowed to upgrade their skills
and render service towards patient care".
10.3. Reservation for "Nursing Tutors" in M.Sc. (Nursing) course is under
active consideration. A proposal for extending the benefit of
reservation under the "In-service" category to "Nursing Tutors" as
well, has been circulated by AIIMS, which is pending approval from
Deans' Committee.
10.4. In response to AIIMS' communication addressed to the Principal of
the College of Nursing, AIIMS whereby they proposed "reservation
of 10 seats for the M.Sc. Nursing course [...] for Nursing Staff" - the
Principal of College of Nursing vide response dated 03rd November,
2015, suggested that one seat may be reserved for "Tutors working in
College of Nursing, AIIMS". This communication signifies that there
has always been an understanding and a clear distinction of cadres at
AIIMS; Nursing Staff and Nursing Tutors are separate. Subsequently,
when the proposal qua reservation was placed before the Academic
Committee, in the meeting dated 16th June, 2016 - it was decided and
that seats be reserved "for Nursing Staff at AIIMS". Therefore,
admission of the Petitioner in the Course was rightly rejected vide
impugned notice. It is evident from the documents annexed with the
counter-affidavit that AIIMS, after due deliberation and consideration,
granted reservation only to Nursing Staff and not Nursing Tutors and
not defining "In-service" in the Prospectus is not fatal to their case.
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To buttress this contention, reliance is placed on Karnati Ravi & Anr.
v. Commissioner, Survey Settlements and Land Records & Ors.4
10.5. It is well-settled that courts have limited powers of judicial review in
matters relating to an administrative/policy decision taken in exercise
of its discretionary powers. Courts cannot interfere with such
decisions on the ground of exploring a better/fairer alternative.5
ANALYSIS
11. AIIMS has denied the benefit of reservation under the category of
"In-service" candidate to the Petitioner who is concededly working as a
Nurse in the Faculty cadre at College of Nursing of AIIMS. The
disqualification stems from impugned notice, extracted above and in that
light, following questions arise for consideration: (a) Whether Petitioner is
an "In-service" candidate for the purpose of admission to M.Sc. (Psychiatry
Nursing) course in terms of the Prospectus; (b) Whether there is any rational
basis for classification between Nursing Staff and Tutors, in relation to "In-
service" seats; and (c) Whether Petitioner is estopped from challenging the
impugned notice.
12. It is undisputed that Petitioner enrolled at AIIMS and received her
B.Sc. (Nursing) degree from the said institute and since 2004, she has been
employed as a "Tutor in Nursing" at AIIMS.6 Desirous of pursing higher
education, she registered for AIIMS M.Sc. entrance examinations - 2022
(2018) 12 SCC 635.
Reliance is placed on Directorate of Film Festivals & Ors. v. Gaurav Ashwin Jain & Ors., (2007) 4
SCC 737.
Vide appointment letter dated 17th April, 2004.
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and thereafter sat for the entrance examination. She was allotted seat under
"AIIMS New Delhi In-Service" category on 08th September, 2022 vide Seat
Allocation Slip, which was issued to Petitioner and reads as under: -
13. It is thus evident that until 08th September, 2022, AIIMS considered
the Petitioner as "AIIMS New Delhi In-Service" candidate. No distinction
was carved out until issuance of the impugned notice on 12th September,
2022 vis-à-vis Petitioner wherein AIIMS narrowed the zone of consideration
by creating a sub-category, within the "In-service" category, resulting in
creation of a sub-class/genus which finds no mention in the Prospectus. In
that light, it is apposite to extract the relevant portion contained in the
Prospectus, which deals with availability of seats and reservation qua such
seats for "AIIMS In-service Candidate" under M.Sc. (Nursing) course: -
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14. As can be seen from the above, the second bullet at the footer
provides for reservation for "AIIMS, New Delhi Candidate (in-service) for
M.Sc. (Nursing)". The Prospectus, on the basis whereof Petitioner as well as
the other candidates appeared in the entrance examination, clearly uses the
words "AIIMS, New Delhi Candidate (in-service)". In absence of any other
condition stipulated, the category of "In-service" has to be given it's natural
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and common textual meaning. If the intent of AIIMS was to limit
reservation under "In-service" category only for Nursing Staff or Nursing
Officers, they ought to have mentioned the same in the Prospectus so that
prospective candidates were aware of the eligibility/qualifying criterion.
After selection process has commenced, the ground rules cannot be altered
midway.7 The Court finds merit in Petitioner's contention that AIIMS, vide
impugned notice, belatedly inserted a qualifying criteria qua reserved seats
under "In-service" category, without any rationale, thereby diminishing the
sanctity of the Prospectus. The Prospectus contains information qua
admission and is binding on all candidates as well as on the executive
machinery that issued the same containing the criterion for selection and
admission, which is not open for whimsical alteration. It is well-settled that
the prospectus/brochure is not merely a declaratory in nature is required to
be followed in its letter and spirit and should not be transgressed. Aspirants
of M.Sc. (Nursing) course, who fall within the reservation criteria as per the
Prospectus, cannot be ousted, by introducing amendments to the Prospectus
vide impugned notice (as in the present case), a corrigendum.8 If it is
construed that the Prospectus is silent regarding classification, even then
disqualification cannot be assumed, implied, or read, against the Petitioner.
15. AIIMS seeks to justify distinction between "In-service" Nursing Staff
and Tutors by relying on following documents placed on record along with
the counter-affidavit: -
See: Mohd. Sohrab Khan v. Aligarh Muslim University & Ors., (2009) 4 SCC 555. Relevant paragraph
No. 24.
See: Varun Kumar Agarwal v. Union of India & Ors, 2011 SCC OnLine Del 1133.
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(i) The communication issued by Principal of College of Nursing, AIIMS
on 03rd November, 2015, in response to the proposal of AIIMS qua
reservation. The above noted communication only mentions that the
Principal, College of Nursing, has no objection qua reservation
towards Nursing Tutors, however, no distinction is mentioned insofar
as "In-service" seats are concerned.
(ii) Minutes of 114th Academic Committee Meeting held on 16th June,
2016 provides that the proposal of reservation of seven seat for M.Sc.
Nursing course is only qua "Nursing Staff" and not "Nursing Tutors".
Relevant portion of the minutes reads as under: -
"Item No. 14 Proposal for reservation of 07 seats for M.Sc. Nursing course
in the College of Nursing, AIIMS, New Delhi for Nursing
Staff at AIIMS
Proposal for reservation of 07 seats for M.Sc. Nursing
courses in the College of Nursing was discussed. The
committee members were informed that these seats are
over and above the number of already sanctioned seats in
MSc Nursing courses at AIIMS and will be available for
In Service Candidates only.
Chairman desired to know about the reservation status in
M.Sc. Nursing Courses at AIIMS. He was informed that
point based reservation roster system is followed at
AIIMS New Delhi and the same is applicable in M. Sc.
Courses as well. The proposal was approved."
[Bold in original]
Reliance has also been placed on Minutes of Meeting with the
representatives of Nurses Union, AIIMS held on 14th July, 2017
which provides that - "as per decision in the meeting with regard to
higher studies, it was informed that 7 seats in M.Sc. nursing will be
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created to exclusively AIIMS nurses staff". Both these documents do
not contain an express disqualification and/or condition that "Nursing
Staff" excludes "Nursing Tutors" or should be read as such. Item No.
14, extracted above, provides that the seats available for reservation
are for "In Service Candidates only".
(iii) E-mail communication dated 21st August, 2021 addressed to AIIMS
Dean, Academic Section, etc. from the Principal of College of
Nursing (reproduced below) and Office Note dated 09th September,
2021 [Annexure R-8 of counter-affidavit]: -
The above documents do not support AIIMS' case that there was
always clarity regarding the ambit of "In-service" seats for M.Sc.
Nursing course. On perusal of the above e-mail communication, it is
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evident that among AIIMS authorities, there appears to be some
ambiguity regarding the scope of "In-service" category. Additionally,
both E-mail as well as the Note reproduced above were both issued in
relation to admission of the Petitioner for academic session 2021.
(iv) Note of Deans' Committee, AIIMS [Re: 'Attrition of M.Sc. Nursing
students Increase in In-service seats'] and Office Memorandum dated
04th August, 2022 issued by Academic Section, AIIMS. The above
documents reveal that the proposal of reservation of two seats under
"In-service" category for Nursing Tutors (in relation to Paediatric and
Oncology specialities) is pending approval of the Deans' Committee.
These documents cannot be construed to hold that Petitioner is
ineligible to seek reservation under the "In-service" category, merely
because proposal for the same is floated and pending approval. That
apart, the proposal floated does not pertains to the speciality that
Petitioner seeks to pursue i.e., M.Sc. (Psychiatry Nursing) course.
16. In a nutshell, the afore-noted documents do not disclose any rationale
or scientific basis for such classification and neither any justification has
been provided therein for disqualifying the Petitioner.
17. AIIMS has also tried to justify the classification/differentiation
between Nursing Staff and Tutors for additional reasons disclosed in the
counter-affidavit, which find no mention in the above documents. They have
argued that duties, functions, promotional hierarchy, recruitment rules, pay,
cadre, etc. of Nursing Staff and Tutor vary. However, this classification is
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ex-facie arbitrary and discriminatory. The above criteria have no relevance
to the issue at hand as the Court is only concerned with eligibility criteria for
pursuing higher qualifications and not promotional avenues. The only
requirement as per the Prospectus, as noted above, in order to claim benefit
of reservation is for a prospective candidate to be "In-service". For this
purpose, distinction between the two cadres is an unreasonable classification
and is therefore, not sustainable. The plea of administrative exigency is a
vague term deployed only to deflect the challenge. The upgradation of skills
of "Nursing Staff" performing clinical duties is no doubt essential, but then
such augmentation of skill set for "Nursing Tutors" is equally important as
they ultimately teach other Nursing Staff, who are involved in active patient
care. In order to improve and enhance medical facilities, distinction for
reservation being confined only to clinical Nursing Staff, would therefore,
not meet the objective, which is sought to be projected in the arguments and
finds no mention in the documents annexed with counter-affidavit.
18. AIIMS has also laid emphasis on the principle of minimal judicial
interference in such matters. Indeed, the same is well-settled proposition.
However, approach of the decision-maker, in this case AIIMS, is not
immune from scrutiny, and is liable to be tested on the anvil of
arbitrariness.9 The Court is bound to ensure that the admission process
remains just and reasonable from the perspective of candidates as well.
19. On the ground of estoppel, the Court finds that in light of facts noted
above, Petitioner cannot be precluded from challenging the impugned notice
See: Sanchit Bansal and Anr. v. Joint Admission Board and Ors., (2012) 1 SCC 157.
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on the ground that she participated in counselling as an "In-service"
candidate. By participation in the selection process, she only accepted the
prescribed procedure and not the illegality of the same. Merely because she
has participated in the selection process for 2022, would therefore, not be
tantamount to curtailing her rights vis-à-vis challenging the impugned notice
issued by AIIMS subsequently. There cannot also be any estoppel against
the Petitioner qua enforcement of fundamental right including Article 14 of
the Constitution of India, 1950. (See: Dr. (Major) Meeta Sahai v. State of
Bihar and Ors.)10. AIIMS has relied on the decision of the Apex Court in
Karnati Ravi (supra), however, the same does not come to their aid since
the selection process therein was within the knowledge of prospective
candidates. In the present case, the Prospectus is silent in relation to the
classification between "In-service" Nursing Staff and Tutors. In case AIIMS
intended to insert an eligibility within the "In-service" cadre, it was required
to do so in the Prospectus itself and not by way of the impugned notice.11
20. AIIMS has also argued that Petitioner is estopped from instituting the
present petition because she was aware that she was not an "In-service"
candidate; considerable reliance in this regard has been placed on the
Memorandum dated 15th September, 2021. According to them, since
Petitioner did not challenge the same last year, she cannot challenge it for
the present year. In the opinion of the Court, this is again a misconceived
plea. Petitioner has explained that challenging the Memorandum pertaining
(2019) 20 SCC 17.
Mr. Krishnan argues that any such disqualification would, in fact, be ultra vires the powers of AIIMS in
the context of the AIIMS Act and Regulations. This Court, having found that AIIMS has not incorporated
such a disqualification in the Prospectus for the present year, it is not considered necessary to enter into this
controversy.
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to last year admission (2021) would not have served any practical purpose as
Petitioner's provisional admission for the said year had already been
injuncted vide order dated 02nd September, 2022 and 03rd September, 2022
in W.P.(C) 9413/2021 [titled as Ramgopal Sharma & Anr. v. AIIMS].
Finally, when Petitioner therein (viz. Mr. Ramgopal Sharma) succeeded in
the said writ, Petitioner had no valid reason to assail the Memorandum dated
15th September, 2021 as such a relief would have been infructuous.
Petitioner therefore has a continuing cause of action and failure to challenge
to the admission process of last year, would not be relevant or binding for
the present year. The cause of action for the present year rejection is
independent and does not dis-entitle Petitioner to maintain the present
petition.
Directions
21. In view of the foregoing, instant petition is allowed, and the impugned
notice dated 12th September, 2022 is set-aside. Petitioner is eligible to be
considered for M.Sc. (Psychiatry Nursing) course in "In-service category" in
academic session 2022. AIIMS is directed to process Petitioner's application
and consider her for admission as envisaged by Respondent's Result
Notification No. 156/2022 [Annexure P-26], as per above directions. The
above directions be complied forthwith, considering the fact that classes for
the Course have commenced.
22. Accordingly, the present petition is disposed of in the afore-said
terms, along with pending application.
SANJEEV NARULA, J
OCTOBER 6, 2022/d.negi
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By:SAPNA SETHI
Signing Date:06.10.2022
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