IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 16.11.2009 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NOs.23721 and 23722 of 2008 and 11975 to 11977 of 2009 and M.P.NOs.1 and 1 of 2008, 1,1 and 1 of 2009 G.Sujatha .. Petitioner in W.P.No.23721 of 2008 R.K.Saravanan .. Petitioner in W.P.No.23722 of 2008 S.Kanagavalli .. Petitioner in W.P.No.11975 of 2009 S.Amutha .. Petitioner in W.P.No.11976 of 2009 C.Venkatammal .. Petitioner in W.P.No.11977 of 2009 Vs. 1.The Government of Tamilnadu, rep. By its Secretary, Health and Family Welfare Department, Fort St. George, Chennai-600 009. 2.The Director of Medical Education, Rural Health Services, Chennai-600 010. 3.T.Parivallal 4.S.Mullai Rani 5.S.Pavithra (RR3 to 5 impleaded vide order dt.23.6.2009 in M.P.Nos.1 and 1 of 2009) .. Respondents in W.P.No.23721 of 2008 & 23722/2008 https://hcservices.ecourts.gov.in/hcservices/ 1.The Government of Tamilnadu, rep. By its Secretary, Health and Family Welfare Department, Fort St. George, Chennai-600 009. 2.The Director of Medical Education, Rural Health Services, Chennai-600 010. 3.The Director of Medical Services, Teynampet, Chennai-18. (R3 impleaded vide order in M.P.Nos.2 to 2 of 2009 dt.16.11.2009) .. Respondents in W.P.Nos.11975 to 11977 of 2009 W.P.Nos.23721 and 23722 of 2008 are preferred under Article 226 of the Constitution of India praying for the issue of a writ of mandamus directing the respondents to consider the claim of the petitioners in representations, dated 30.6.2008 and 4.7.2008 holding degree in B.Sc. Nursing for being appointed as Nurse in Government hospitals and Government institutions within a time frame fixed by the Court. W.P.Nos.11975 to 11977 of 2009 are preferred under Article 226 of the Constitution of India praying for the issue of a writ of mandamus for a direction to the respondents 1 to 3 to call for the petitioners for the counselling conducted by the respondents 1 to 3 for the post of Staff Nurses in the Government Hospitals and institutions and consider the petitioners' case on par with the other candidates those who have finished Diploma in nursing in Government colleges for the post of Staff Nurse in the Government hospitals and primary health centers in a non discriminatory manner conforming with Articles 14,16,19 and 21 of the Constitution of India. (Prayer amended as per order dt.16.11.2009 in MP Nos.3 to 3/2009) For Petitioners : Mr.S.V.Jayaraman, SC for Mr.S.Annamalai in W.P.Nos.11975 to 11977/2009 Mr.S.Senthilnathan in W.P.Nos.23721 and 23722 of 2008 For Respondent : Mr.A.C.Manibharathi, GA Mr.S.Saravanakumar for impleaded respondents https://hcservices.ecourts.gov.in/hcservices/ COMMON ORDER Heard both sides. 2.These five petitioners have filed the present writ petitions, seeking for a direction to the respondents to call for the petitioners for a counselling conducted by the respondents for the post of Staff Nurses in the Government Hospitals and institutions and consider the petitioners' case on par with the other candidates who have finished Diplomas in Nursing in Government Institutes for the post of Staff Nurse in the Government Hospitals and Primary Health Centers in a non discriminatory manner. 3.The petitioners claimed that they have studied B.Sc. (Nursing) and got their degrees from the University. They have also underwent internship in the College of Nursing and got their names registered as Nurses and Midwives in the Tamil Nadu Nurses and Midwives Council. Therefore, they are fully qualified to be appointed for the post of Staff Nurse. However, the petitioners were not called for any interview even though they have got their names registered in the employment exchanges. The respondents are only filling up the posts of Staff nurse with diploma holders leaving out the degree holders. The action of the respondents is illegal. 4.Subsequent to the filing of the petitions, some parties have got themselves impleaded. The petitioners also filed applications to amend the prayer and they were allowed. 5.Pending the writ petitions, this Court in the first two writ petitions, granted interim injunction. Subsequently, by an order, dated 23.6.2009, it was modified and a direction was given to keep two posts vacant. In the second batch of three writ petitions, only notice was ordered in the interim applications. 6.On notice from this Court, the respondents have filed a common counter affidavit, dated Nil (2009). In the counter affidavit, it was stated that the appointment of Staff nurse on contract basis is made among candidates, who had completed training in the Government Medical institutions having regard to the communal rotation and on the basis the ranks obtained by them as per the register maintained by the Director of Medical Education. The rank list is prepared by the Director of Medical Education batch-wise. As per the Tamil Nadu Medical Code Volume I, Chapter XII, Section 2 Rule 225(3), candidates admitted for training by the Regional committee appointed by the State Government after undergoing the course of Training and passing the final examination, should serve in the Government hospital as Nurses for a period of three years if so required by the Government. These candidates will complete their course in the https://hcservices.ecourts.gov.in/hcservices/ Government Medical Institutions at the cost of the Government exchequer. Their services are utilized in the Government Medical Institutions after completion of their course. 7.The attention of the Court was also drawn to the earlier judgment of the Division Bench of this Court made in a batch of writ appeals. It is stated that the students completed their diplomas in Nursing course, for which they will have to undergo training for three years in General Sick nursing and for 6 months in Gynecology and Obstetrics (Mid-wife Training). It is also stated that the petitioners are only degree holders and they have no contract with the department for being appointed as staff nurse. 8.With reference to the difference between the diplomas and degree in B.Sc.(Nursing), in paragraphs 8 and 9 of the counter affidavit, it was averred as follows: "8.It is submitted that the clinical requirements for Diploma in General Nursing & Midwifery candidates are three times more than the Basic B.Sc., Nursing candidates. Diploma in nursing clinical hours is 4344. Basic B.Sc., clinical hours only 1645. Hence the Diploma holders are well experienced in patient care than Basic B.Sc., Nursing candidates. They are not eligible for seeking appointment as Staff Nurse elsewhere in lieu of having executed bond to serve the Government after the completion of their course in Government Nursing Institution who are being appointed as Staff Nurse in Government Medical Institutions in as much as sufficient number of candidates are available for providing appointment in Tamil Nadu Medical Subordinate Services as per Tamil Nadu Medical Code Vol I Chapter XII section 2 rule 225(3). 9.It is submitted that during training, the Government Diploma in Nursing students are put to strict terms and conditions. The Hostels in all the 21 Institutions are attached to the Hospital (either inside the Hospital premises or next to it). The trainers are not allowed to leave the campus without prior permission from the Dean. They are utilized round the clock. During 1st,2nd & 3rd year, the theoretical class is conducted two days in a week. They are utilized in https://hcservices.ecourts.gov.in/hcservices/ the Hospitals on the remaining days and during emergencies on the other days. The trainees are also deputed to the Government camps to serve the public during Natural calamities. Hence, the prayer of the petitioners is not justice and need not be considered. Hence, the Writ Petition may be dismissed and stay may be vacated." Therefore, it was stated that there was no violation of Article 14 of the Constitution of India. 9.In this context, it is necessary to refer to the earlier Division Bench judgment of this Court in M.Elumalai and others Vs. M.Bhuvaneswari and others reported in 2007 (3) MLJ 967, wherein recruiting the stipend nurse in the regular employment of Staff nurse was attacked by the candidates who had undergone training in the private nursing institutions. The Division Bench, by its order, negatived the contentions raised by such petitioners. In paragraphs 11, 23 and 24, the Division Bench had observed as follows: "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 Services Rules." Every year, 1795 candidates https://hcservices.ecourts.gov.in/hcservices/ 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 SCC 1, having spent public money on them, the absorption of these trainee students cannot be said to be unreasonable. ..... 23.It is open to the Government to take a decision and in fact, the learned advocate General fairly acknowledged that this Code came into effect at a time when there were not many nursing institutions, at any rate, there were hardly any private institutions. Now where there is a clamour for admission to nursing courses, the Government will have to take into account the changes that have taken place in the last 100 years. We cannot direct the State to make an amendment in this regard. However, the State may consider making a provision which will ensure that the opportunity to be appointed as a Government Nurse is not foreclosed to students who have pursued their studies in private institutions, while safeguarding the position of Government Nurses. Many documents were also produced to show that the private institutions were all registered and recognised. 24.The selection process was not initiated. It is the categoric statement of the Government that there was no advertisement. It is also their case that these students who had been trained for Government service are still waiting in queue and therefore, the appointment would be given to those on whom public money has been spent. This course is not strictly akin to apprentices. According to the State, this is an integrated, composite course of education and it starts when the student passes the entrance examination. The judgment in Anant Madaan V. State of Haryana (supra), also clearly says that the two classes are different. Therefore, the finding that the Private Nurses are entitled to be treated as equal and therefore entitled to a mandamus cannot be accepted, especially since even those who are trained are not entitled to a mandamus https://hcservices.ecourts.gov.in/hcservices/ for as a matter of right." 10.Mr.S.V.Jayaraman, learned Senior Counsel appearing for the petitioners contended that the said judgment has no direct bearing on the issue raised in the present writ petitions. According to him, in that case the attack made by the candidates trained in the private institutions alone were repelled. But in the present case, the challenge is made by the persons, who have obtained degree qualifications from Government Colleges, which is superior to that of the diplomas. Since they were also trained as nurse by the Government institutions, they belong to same class and within a same class, there cannot be any invidious classification. 11.If there is an agreement to retain a trainee for regular employment then such an agreement is valid. It cannot be attacked on the ground that it violated Articles 14 or 16 of the Constitution. Therefore, it is necessary to refer to the judgment of the Supreme Court in Narender Kumar v. State of Punjab reported in (1985) 1 SCC 130. Though the said case arose under the interpretation of Section 22(2) of the Apprentices Act, 1961, the principle laid down thereon will squarely apply to the facts of the case on hand. Therefore, it is necessary to refer to paragraph 9 of the said judgment, which is as follows: "9. We are also of the opinion that, apart from the implications arising out of Section 22(2) of the Apprentices Act, para 2 of the letters of appointment creates a binding obligation upon the employer to absorb the apprentices in the department on the successful completion of the training period, provided there is a vacancy in which the apprentices can be appointed. It would be contrary both to the letter and spirit of para 2 of the letters of appointment to hold that, even if there is a vacancy in which an apprentice can be appointed after the successful completion of his training, the employer is free not to appoint the apprentice and fill that vacancy by appointing an outsider. Such a reading of the assurance contained in para 2 will also frustrate the very object of the provision made by the Legislature in Section 22(2) of the Act. The object of that provision is to guarantee, to the extent of the existence of vacancies, that the apprentices will not be rendered jobless after they complete their training." https://hcservices.ecourts.gov.in/hcservices/ 12.Similar view was also taken by this Court vide its judgment in G.Ravikumar Vs. Chairman and D.G.O.F. Ordinance Factory Board, Kolkatta and others reported in 2007 (5) MLJ 862. 13.The Supreme Court has held in Sanjay Kumar Manjul v. Chairman, UPSC reported in 2006 8 SCC 42 that qualifications for recruitment to the posts are laid down in terms of statutory rules and that statutory authority is entitled to frame rules. The following passage found in paragraph 25 reads as follows: 25. The statutory authority is entitled to frame the statutory rules laying down the terms and conditions of service as also the qualifications essential for holding a particular post. It is only the authority concerned which can take ultimate decision therefor. 14.In the light of the above, all these writ petitions will stand dismissed. However, there will be no order as to costs. Consequently, the connected MPs also stand dismissed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vvk To 1.The Secretary, The Government of Tamilnadu, Health and Family Welfare Department, Fort St. George, Chennai-600 009. 2.The Director of Medical Education, Rural Health Services, Chennai-600 010. 3.The Director of Medical Services, Teynampet, Chennai-18. https://hcservices.ecourts.gov.in/hcservices/ +1cc to Govt. Pleader Sr 61332 +1cc to Mr.S.Saravanakumar, Advocate Sr 61270 +3ccs to Mr.S.Annamalai, Advocate Sr 61473 +2ccs to Mr.S.Senthil Nathan, Advocate Sr 61242,61241 RB(CO) km/9.10. W.P.NOs.23721 and 23722 of 2008 and 11975 to 11977 of 2009 https://hcservices.ecourts.gov.in/hcservices/