IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 27..04..2007 C O R A M THE HONOURABLE MR. R. BALASUBRAMANIAN and THE HONOURABLE MRS. JUSTICE PRABHA SRIDEVAN Writ Appeal Nos.726, 1223 & 1224 of 2006, Writ Petition Nos.28699 and 35944 of 2006 1. M. Elumalai 2. P. Mallika 3. V. Selvi .. Appellants in 4. S. Kalaiselvi W.A. No.726 of 2006 versus 1. M. Bhuvaneswari 2. The State of Tamil Nadu, rep. by the Secretary, Health & Family Welfare Department, Fort St. George, Chennai-9. 3. The Director of Medical Services, Teynampet, Chennai-18. 4. The Tamil Nadu Nurses and Midwives Council, Chennai-4. 5. Private School Nurse's Association, rep. by its President S. Senthilnathan, No.31, Mettu Street, Vellaimedupettai, Tindivdanam Taluk, -604 207. Villupuram District. 6. Tamil Nadu Govt. Trained Nurses Association, Rep. by its State Secretary V. Arul Kumar, Chennai. 7. M. Prabhavathi 8. M. Devaki 9. P. Nagarani 10. R. Premalatha 11. R. Nagajothi 12. V. Pargavi 13. K. Lalitha 14. G. Sumathi https://hcservices.ecourts.gov.in/hcservices/ 15. Devi Kamachi 16. V. Veeraramalakshmi (R-5 impleaded as party respondent vide order of Court dt. 23.8.2006 in .. Respondents in WAMP. No.1582 of 2006) W.A. No.726 of 2006 17. Private Nursing School Nurses Association rep by its President M.Padmapriya,Thiruvannamalai (RR.6 to 17 impleaded as party respondents vide order of Court dt.28.2.07 made in MP.1/07,2/07, 3/06,5/06 & 1589/06) 1. The State of Tamil Nadu, rep. by the Secretary to Government, Health and Family Welfare Department, Fort St. George, Chennai-9. 2. The Director of Medical Services, Teynampet, Chennai-18. 3. The Tamil Nadu Nurses and Midwives Council, .. Appellants in Chennai-4. W.A. No.1223 of 2006 versus 1. M. Bhuvaneswari 2. M. Elumalai 3. P. Mallika 4. V. Selvi .. Respondents in 5. S. Kalaiselvi W.A. No.1223 of 2006 RR. 2 to 5 impleded as per the order of Court dated 16/3/06 in WPMP.8215/06 1. The State of Tamil Nadu, rep. by the Secretary to Government, Health and Family Welfare Department, Fort St. George, Chennai-9. 2. The Director of Medical Services, .. Appellants in Teynampet, Chennai-18. W.A. No.1224 of 2006 versus K. Kavitha .. Respondent in W.A. No.1224 of 2006 1. T. Rathi 2. S. Elavarasi 3. K. Udhaya Banu 4. V. Bala 5. M. Deepa .. Petitioners in 6. D. Bharathi W.P. No.28699 of 2006 https://hcservices.ecourts.gov.in/hcservices/ versus 1. The State of Tamil Nadu, rep. by Commissioner & Secretary to Government of Tamil Nadu, Health & Family Welfare Department, Fort St. George, Chennai-9. 2. The Director of Medical Services, Teynampet, Chennai-18. 3. The Registrar, The Tamil Nadu Nurses & Midwives Council, .. Respondents in Chennai-4. W.P. No.28699 of 2006 M. Saroja .. Petitioners in W.P. No.35944 of 2006 versus 1. The Director, Rural & Medical Service, Teynampet, Chennai-6. 2. Joint Director, Health & Welfare Service, Teynampet, Chennai-6. 3. Director of Medical Services, Nursing Section, Govt. of Tamil Nadu, Rep. by its Secretary, Health Department, .. Respondents in Secretariat, Chennai-9. W.P. No.35944 of 2006 Prayer : W.A. Nos.726 and 1223 of 2006 filed under Clause 15 of the Letters Patent against the order of a learned single Judge of this Court dated 27.4.2006 passed in W.P. No.36932 of 2005, filed under Article 226 of constitution of India, praying for issuance of writ of mandamus directing respondents 1 and 2 to appoint the petitioner as staff Nurse. W.A. No. 1224 of 2006 filed against the order of a learned single Judge of this Court dated 27.4.2006 passed in W.P. No.39236 of 2005, filed under Article 226 of the constitution of India praying for a writ of mandamus directing the respondents to consider the petitioner for appointment as staff nurse in the Government General Hospitals and primary Health centers under the respondents on the basis of the seniority of registration in the Tamil Nadu Nurses and midwives Council along with the personnel who have studied diploma in nursing and midwifery in the Government institution without any discrimination between the https://hcservices.ecourts.gov.in/hcservices/ person who studied in the Government institution and Government recognized private institution. W.P. No.28699 of 2006 filed under Article 226 of the Constitution of India praying for a writ of mandamus directing the respondents to consider the petitioners for appointment of Staff Nurses in the Government General Hospitals and Primary Health Centres under the respondents on the basis of seniority of registration in the Tamil Nadu Nurses and Midwives Council on par with the candidates who underwent Nursing Course in the Government Institution or organisation without any discrimination between the persons who studied in the Government Institution and Government recognised private institution within the time framed manner. W.P. No.35944 of 2006 filed under Article 226 of the Constitution of India praying for a writ of declaration, declaring the candidates qualifying from Private Nursing Colleges and Universities in Tamil Nadu are eligible to be appointed as Nurses in the Government Hospitals in Tamil Nadu. For Appellants in W.A.726/2006 : Mr. N.G.R. Prasad for Mr. S. Saravana Kumar For Appellants in W.As.1223 & : Mr. R. Viduthalai, Advocate General 1224/2006 Assisted by Mrs. Bhavani Subbarayan, Government Advocate. For Petitioners in : Mr. A. Thamizharasan W.P.28699/2006 For Petitioners in : Mr. M.V. Krishnan W.P.35944/2006 For Respondents 1 & 8 : Mrs. Hema Sampath, Senior Counsel in W.A.726/2006 for Mr. R. Subramaniam For Respondents 2 to 4 : Mr. R. Viduthalai, Advocate General in W.A.726/2006 Assisted by Mrs. Bhavani Subbarayan, Government Advocate. For Respondent-5 : Mrs.Nalini Chidambaram SC in W.A.726/2006 for M/s.Glady's Daniel For Respondent-6 : Mr. V. jeevagiridharan in W.A.726/2006 For Respondent-7 : Mr. S. Rajendiran in W.A.726/2006 https://hcservices.ecourts.gov.in/hcservices/ For Respondents 9 to 16 : Mr. T.R. Rajaraman in W.A.726/2006 For R17 in WA.726/2006 :Mr.G.Rajan For Respondent-1 : Mrs. Hema Sampath, Senior Counsel in W.A.1223/2006 for Mr. R. Subramaniam For Respondents 2 to 5 : No Appearance in W.A.1223/2006 For Respondent-1 : Mr. R.N. Amarnath in W.A.1224/2006 For Respondents 1 to 3 in :Mr. R. Viduthalai, Advocate General W.P.28699/2006 Assisted by Mrs. Bhavani Subbarayan, Government Advocate. For Respondents in :Mr. R. Viduthalai, Advocate General W.P.35944/2006 Assisted by Mrs. Bhavani Subbarayan, Government Advocate. J U D G M E N T Prabha Sridevan, J. Writ Petition Nos.36932 and 39236 of 2005 were filed by the petitioners, the former for a mandamus to appoint the petitioner therein as Staff Nurse and the latter for a mandamus to consider the petitioner therein for appointment as Staff Nurse. The grievance of the petitioners was that only the persons who have studied in Government Nursing Colleges (Government Nurses in short) and have got a diploma had been called for interviews and appointed in the Government General Hospitals and Primary Health Centres, to the exclusion of other persons who have studied in private institutions (Private Nurses in short), and this is violative of Articles 14, 16 and 21 of the Constitution of India. Respondents 4 to 7 in the writ petitions were persons who had studied in Government Nursing Colleges and who had been called for interviews. The writ petitions were allowed as prayed for. As against that, respondents 4 to 7 filed Writ Appeal No.726 of 2006. The State filed Writ Appeal Nos.1223 and 1224 of 2006. Writ Petition No.28699 of 2006 was filed by students who had qualified in the three year diploma from private nursing colleges, who had been neglected totally by the Government and therefore, they sought for a mandamus to direct the respondents to consider the petitioners for appointment on the basis of seniority of their registration. Since the writ appeals had already been filed, this writ petition was directed to be posted along with the appeals. Similarly, Writ Petition No.35944 of 2006 was filed for a declaration that candidates qualified from private nursing colleges are eligible to be appointed in Government Hospitals in Tamil Nadu. Private nurses have also impleaded themselves as intervenors. https://hcservices.ecourts.gov.in/hcservices/ 2. Mrs. Nalini Chidambaram, Mrs. Hema Sampath, learned senior counsel made their submissions on behalf of the Private Nurses. The learned Advocate General made his submissions on behalf the State and Mr. A.L. Somayaji, learned senior counsel and Mr. N.G.R. Prasad, learned counsel made their submissions on behalf of the Government Nurses 3. According to the petitioners, they had obtained diplomas in General Nursing and Midwifery Course conducted by the Directorate of Medical Education; they were also registered with the Tamil Nadu Nurses and Midwives Council; some of the writ petitioners had also been working in private hospitals. Petitioners came to know that there were more than 3,000 vacancies; so, they thought that they would be recruited and appointed in these vacancies since they had registered their names; but to their shock, only those candidates who did their course in Government Nursing Colleges were selected and those who studied in private institutions, even though they were recognised institutions, were not selected. They are qualified as per the Madras Medical Subordinate Service Rules and they are entitled to be appointed. Denial of equal treatment is violative of constitutional norms. 4. The stand of the Government was that as per the Madras Medical Code, examinations are conducted for training selected candidates as nurses. The successful persons are admitted to the Nursing Course and on completion of the course are absorbed as nurses. At the commencement of the course, they execute a bond that they will serve the Government for a period of three years. The selected candidates are trained by the Government utilising the Government funds. They are paid stipend and considerable expenditure is incurred by the Government to train them. It is specifically stated that the appointments are made based on communal rotation and performance. This procedure of appointment has been followed all these years and if it is unsettled, the Government would not be in a position to keep their promise of providing employment to the nursing candidates who have passed out of Government Nursing Colleges. 5. We have heard the learned Advocate General for the Government, the learned senior counsel and the learned counsel appearing on behalf of the petitioners. 6. The Rules for the Training of Nurses in Government Hospitals in the State of Tamil Nadu are relevant : "..... https://hcservices.ecourts.gov.in/hcservices/ Rule-5 : Entrance examination and agreement – Candidates will be admitted on three months trial and towards the end of this period, a preliminary examination will be conducted by the Nursing Superintendent of Nursing Tutor of the Hospitals. Candidates who fail in the entrance examination in the first attempt will be allowed to continue their training for further period of one month and re-examination will be held at the end of the month. If they fail even in the second attempt, their training will be terminated forthwith. Candidates who pass the entrance examination and found medically fit will be required to sign an agreement in the form given in the annexure IV to these rules to complete their training and to remain in service for a minimum period of three years after the completion of training, if required by the authorities. Notes – (1) An interval of one month should be allowed to lapse between first and second entrance examination to be held for the benefit of the candidates who fail for the first time. (2) Deserving nurse pupils who have failed twice in the entrance examination will be permitted to appear for the third time, after undergoing three months training at their own costs. Rule-6 : Course of training and syllabus and contract period of Service – (a) The course of training for nurse pupils shall not exceed 3-1/2 years as shown below. The Nurse Pupils will be taught as per the syllabus prescribed by the Indian Nursing Council (Annexure 2 to these rules). ..... Candidates may be allowed to seek employment elsewhere if the employment scheme are not provided to them by the Government within six months from the date of completion of their training." ..... "Rule-16 : Appointment not guaranteed – Nurse Pupils who successfully complete their training and obtain their certificates will be eligible for appointment as nurse and they should registere themselves with the Tamil Nadu Nurses and Midwives Council immediately. Appointment cannot be guaranteed to all or any of the successful candidates. Recruitment will be made by the Director of Health Services and Family Planning, in accordance https://hcservices.ecourts.gov.in/hcservices/ with the Tamil Nadu Medical Subordinate Service Rules." The relevant provisions of the Madras Medical Subordinate Service Rules are as follows : "General qualifications – A candidate for appointment by direct recruitment to the categories specified in column (1) of the table below must, as regards her age, satisfy the conditions specified in the corresponding entry in column (2) thereof. TABLE Category Age (1) (2) 2. Nurses ... ... ... ... Must not have completed the age of 32 years : Provided that a woman candidate who had been admitted to the training referred to in item (A) of the qualifications specified in column (2) of the Annexure for Nurses before the 22nd May 1935 shall be eligible for appointment if she has not completed the age of 40 years : Provided further that a woman candidate who had been admitted to the above training before the 30th September 1953, shall be eligible for appointment if she has not completed the age of 37 years : Provided that a candidate belonging to the Scheduled Castes or the Scheduled Tribes shall be eligible for appointment to the post of Hospital Social Workers if she has not completed the age of 40 years." ..... "6. Probation – (a) Every person appointed to a category including those appointed under a contract shall, from the date on which she joins duty, be on probation for a total period of two years on duty within a continuous period of three years." https://hcservices.ecourts.gov.in/hcservices/ Annexure 'A' to the said Rules reads as follows : ANNEXURE (Referred to in rule 5) Category Qualifications (1) (2) Categories 1 and 2 – Head Nurses and Nurses (Women)..(A) A successful training for a period of not less than three years in general nursing of men and women and for a period of not less than six months in midwifery training in both cases to be undergone in an institution approved by the State Government under rule 37 of the rules made under sub-section (2) of section 11 of the Madras Nurses and Midwives Act, 1926, with qualifications prescribed for registration as nurse and maternity assistant under the said Act ; or A foreign training which is considered by the Director of Medical Services to be equivalent or superior to the above training or possession of a basic degree in Nursing from a University Grants Commission for the purpose of its financial grant. (B) A person possessing a basic degree in Nursing shall be considered for promotion as Head Nurse only if she has served for a total period of two years as a Nurse in a district headquarters hospital, a small mufassal hospital, a maternity hospital and a teaching general hospital. (C) But for appointment as a Nurse, a person who possesses the above qualifications or only the qualification in general nursing and who has rendered https://hcservices.ecourts.gov.in/hcservices/ satisfactory military service, shall be preferred. Provided that, if a person who has undergone training only in general nursing is not willing to undergo the training in Gynaecology and Obstetrics, all not be appointed to the service." The relevant provisions of the Tamil Nadu Nurses and Midwives Act, 1926 are as follows : "5. Registration of nurses, midwives, health visitors and auxiliary nurse-midwives - (1) The Council shall maintain a register of nurses, midwives, health visitors and auxiliary nurse- midwives and in such register shall be entered the names of all nurses, midwives, health visitors and auxiliary nurse-midwives, who have undergone the course of training and passed the examinations and fulfil the conditions prescribed. (2) The register referred to in sub-section (1) shall consist of such parts and shall be maintained in such manner as may be prescribed." "11. Rules by the State Government - The State Government may, after previous publication, make rules to carry out all or any of the purposes of this Act not inconsistent therewith. (2) In particular, and without prejudice to the generality of the foregoing power, they may make rules - (a) regulating the conduct of the elections of members of the Council; (b) regulating the conditions of admissions to the register; (bb) prescribing the conditions and restrictions subject to which the Council shall enter in the register referred to in sub-section (1) of section 5 of the name of any person under sub- section (2) of section 5-A. (c) regulating the conduct of any examinations which may be prescribed as a condition of admission to the register, and any mattes ancillary to or connected with such examinations; https://hcservices.ecourts.gov.in/hcservices/ (d) prescribing the causes for which, the conditions under which and the manner in which, the nurses, midwives, health visitors, auxiliary nurse midwives, and dhais may be removed from the register and the procedure for restoration to the register or nurses, midwives, health visitors, auxiliary nurse midwives and dhais who have been removed therefrom; (e) regulating the selection of the panels and the constitution of the Tribunal specified in sub-section (2) of section 8 and the procedure to be followed by the Tribunal; (f) prescribing the fees to be paid in respect of an appeal under this Act; (g) determining the manner in which all fees levied under this Act and all moneys received by the Council shall be applied for the purposes of this Act; (3) All rules made under this Act shall, as soon as possible after they are made, be placed on the table of both Houses of Legislature and shall be subject to such modifications by way of amendment or repeal as the Legislature may make either in the same session or in the next session." Similarly, the relevant provision of the Indian Nursing Council Act, 1947 read as follows : "15-A. Indian Nurses Register - (1) The Council shall cause to be maintained in the prescribed manner a register of nurses, midwives, auxiliary nurse-midwives and health visitors to be known as the Indian Nurses Register, which shall contain the names of all persons who are for the time being enrolled on any State register. (2) It shall be the duty of the Secretary of the Council to keep the Indian Nurses Register in accordance with the provisions of this Act, and from time to time, to revise the register and publish it in the Gazette of India and in such other manner as may be prescribed. (3) Such register shall be deemed to be a public document within the meaning of the Indian Evidence Act, 1872, and may be proved by a copy published in the Gazette of India." https://hcservices.ecourts.gov.in/hcservices/ 7. It was urged on behalf of the State that this is the practice that has been followed for several years and the State has incurred a huge expenditure in training the nurses on the expectation that they would serve the State and the appointments have been made only in accordance with the Tamil Nadu Medical Code. 8. The Madras Medical Subordinate Service Rules were read out and it highlighted that in respect of the appointments to all other categories it is stated that every person appointed to a category shall be on probation for a total period of two years etc., while in the case of nurses alone, the Madras Medical Subordinate Service Rules refer to every person appointed to a category, "including those appointed under a contract" and this would mean persons who have been trained and who have executed a bond as extracted above and appointed. It is also submitted on behalf of the State that an examination is conducted and only after that, the trainee nurses are chosen and the persons who join the private institutions are candidates who have failed the examination. Having failed in the examination, they cannot now claim that they are entitled to the same benefit or same treatment as those who had passed the examination and had been inducted as trainees, given training and appointed to the posts. 9. Learned counsel appearing for the Private Nurses submitted that the training undertaken by the trainee nurses and the private nurses are not different; the course content is the same. As far as practical training is concerned, all private nurses are also sent to Government Hospitals for training. The institutions where the private nurses have undergone their training are all recognised institutions and therefore, the clause in the Tamil Nadu Medical Subordinate Service Rules which prescribes the qualification of undergoing training "in an institution approved by the State Government" is unreasonable and it is neither fair nor just to exclude the private nurses. This would violate Article 14 of the Constitution and it is totally arbitrary and there is no rationale for such exclusion. Learned counsel submitted that the Madras Medical Subordinate Service Rules being a piece of subordinate legislation cannot be overridden by the Tamil Nadu Medical Code, which admittedly are executive instructions. Learned counsel submitted that the statistics would show that there are huge number of trainee nurses waiting to be recuited and if the State decides to accommodate all of them, then the private nurses would be permanently excluded from being appointed in Government Hospitals, which cannot be countenanced in law. The learned counsel submitted that when the Madras Medical Subordinate Service Rules are clear, it is not necessary for the petitioners to challenge the executive order and they are entitled to seek for a mandamus for appointment. https://hcservices.ecourts.gov.in/hcservices/ 10. The writ petitioners have come with a prayer for mandamus. The rules subject to which the Government Nurses have been given training and absorbed as nurses have not been challenged. Of course, it was contended by Mr. R.N. Amarnath that executive instructions can never override the Madras Medical Subordinate Service Rules framed under Article 309. However, the Madras Medical Code and the provisions thereunder which have been extracted above which deal with the manner in which these trainees enter into a contract and are taken in as nurses have been in vogue for many decades. The history of public health institutions in this Sate is over a century old. At that time, the Government thought out a well laid plan to start their own training institutions for nurses. With a view to attract the best talent, these institutions provided incentives for women to get training and service bonds were also obtained from them so that the training is utilised in Government Hospitals. During their inhouse training, they were imbibed with a spirit of public service. After Independence and the Constitution, the trainee nurses were taken in on the basis of communal roster and merit was the criterion for admission. 11. The entry into the category of nurses starts with the admission into a Government Training School. It is a composite scheme of recruitment, training and absorption exclusively for Government institutions. According to the State, if a person wants a posting in a Government Hospital, the entry point is an admission in the training institution run by the Government and there is no scope for any lateral entry. The candidates who succeed in the examination and are given training in Government institutions enter into an agreement to serve the Government for a minimum period of three years after completion of their training. Therefore, the Government provides these candidates rent-free quarters, free supply of electricity, paid stipend, which includes uniform allowance and therefore, public money is spent on them. The Prospectus for admission also says "nursing students who have successfully completed their training and obtained their diplomas will be eligible for appointment as nurses. The appointment cannot be guaranteed to all or any of the successful candidates. Recruitment will be made in accordance with the Tamil Nadu Medical Subordinate Service Rules". Every year, 1795 candidates successfully come out of these Government institutions and there are more than enough candidates waiting for appointment in nurse posts. The Government is bound to protect these trainees and as observed in (1995) 2 S.C.C.