IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 23RD NOVEMBER 2009 / 2ND AGRAHAYANA 1931 WP(C).No. 29926 of 2009(I) -------------------------- PETITIONER(S): --------------- LATHAKUMARI P.S., KUNNUMALASSERI, THALAYAR, KUTTOOR P.O., THIRUVALLA, 689 106. BY ADV. SMT.P.V.ASHA RESPONDENT(S): --------------- 1. KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM. 4 2. DISTRICT OFFICER, KERALA PUBLIC SERVICE COMMISSION, ALAPUZHA. 3. KERALA NURSES AND MIDWIVES COUNCIL REPRESENTED BY REGISTRAR, RED CROSS ROAD, THIRUVANANTHAPURAM. 695 035. 4. DISTRICT MEDICAL OFFICER OF HEALTH, ALAPUZHA. 5. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVT. DEPARTMENT OF HEALTH & FAMILY WELFARE, SECRETARIAT, THIRUVANANTHAPURAM. ADV. SRI.N.RAGHURAJ, SC, TCMC & KNMC FOR R3 SRI.ALEXANDER THOMAS,SC,KPSC FOR R1-2 BY GOVT. PLEADER SRI. N. REGHURAJ THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. -------------------------------------------------- W.P.(C) NO.29926 OF 2009 (I) -------------------------------------------------- Dated this the 23rd day of November, 2009 J U D G M E N T Petitioner was working as Nurse in the State of Rajasthan. Ext.P1 is the certificate dated 23.3.1994, issued by the Rajasthan Nursing Council, certifying that the petitioner is a registered Auxiliary Nurse-Midwife and is qualified to practice as Auxiliary Nurse-Midwife. 2. The first respondent by Ext.P2 notification dated 15.9.2007 invited applications for the post of Junior Public Health Nurses Grad-II in the Health Services Department. The qualifications prescribed in the Special Rules and incorporated in Ext.P2 reads as under. “(1) General-pass in SSLC or its equivalent qualifications specified in the General Rules. (2) Technical(1) Auxiliary Nurse - Midwifery Certificate, (Revised Course of 18 months duration) issued by Kerala Nurses and Midwives Council OR Auxiliary Nurse - Midwifery Certificate/ Auxiliary Nurse - Midwifery Certificate(Revised Course) issued by an authority recognized by the Indian Nursing Council. WPC .No.29926/09 :2 : Note:- (1) Health Workers Training Certificates issued by the Kerala Nurses and Midwives Council will also be accepted in lieu of the above Technical Qualifications. (2) Registration with the Kerala Nurses and Midwives Council. “ 3. In terms of clause 9 of the notification, the last date for receipt of applications was specified as 17.10.2007. 4. According to the petitioner she had applied for registration with the 3rd respondent as early as on 26.12.2006 and Ext.P4 Chellan receipt, evidences remittance of the fee prescribed. She was thereafter issued Ext.P5 certificate of registration on 31.12.2007. 5. Accepting the application made by the petitioner responding to Ext.P2 she was issued Ext.P3 hall ticket and after selection process, she was also included in Ext.P3A short list. She appeared for verification of certificates on 6.9.2009 and then the PSC took objection that the petitioner did not have registration with the 3rd respondent, even as on last date for submission of application. There upon petitioner applied to the 3rd respondent who issued Ext.P7 certificate dated 19.6.2009 to the effect that the petitioner was qualified to practice as Auxiliary Nurse-Midwife with effect from March, 1994. Though she WPC .No.29926/09 :3 : submitted Ext.P7 to the PSC, in the ranked list published she has not been included. It was in these circumstances, the writ petition is filed. 6. The prayers sought in this writ petition is to direct the PSC to include the petitioner in Ext.P8 ranked list. In the alternate petitioner also seeks a declaration that insisting on registration with the State Nursing Council, in the case of candidates who are already having registration with Nursing Councils of other states is illegal. 7. According to the standing counsel for the PSC, going by the general conditions, the Special Rules and the conditions of notification, the candidates should be eligible at least as on the last date of submission of the application. It is stated that the last date specified in this case is 17.10.2007 and admittedly the registration initially obtained by the petitioner by Ext.P5, was only on 31.12.2007. It is stated that in such circumstances, the petitioner was unqualified and therefore they were justified in excluding the petitioner from the ranked list. 8. Standing counsel appearing for the 3rd respondent contended that the delay in processing the application made by WPC .No.29926/09 :4 : the petitioner for registration occurred for the reason that as the petitioner was already registered with the Rajastan State Council, they had to verify the genuineness of the claim made by the petitioner with that Council and it is in that process that the delay had occurred. 9. I have considered the submissions made by both sides. 10. As already seen, one of the qualifications prescribed in the special rules is registration with the Kerala Nurses and Midwives Council. The notification also specified 17.10.2007 as the last date for receipt of the application. Admittedly, Ext.P5 is the certificate of registration that was initially obtained by the petitioner from the 3rd respondent. That document was issued only on 31.12.2007. 11. It is the settled position of law that if no other date is specified, at least as on the last date for submitted application specified in the notification, a candidate should be eligible to apply for the post. If that standard is adopted in this case, petitioner having obtained the certificate of registration only on 31.12.2007, was ineligible to apply in response to Ext.P2. If that be so, even if it is true that she had obtained Ext.P7 certificate on WPC .No.29926/09 :5 : 19.6.2007 and had produced before the PSC on 6.9.2009, PSC cannot be faulted for not acting upon the said certificate. 12. Faced with this situation, counsel for the petitioner contended for the position that the special rules insisting on registration with the Kerala Council is illegal, at least in so far as the candidates like the petitioner, who are already registered in other State Councils are concerned. Counsel placed reliance on Sections 22 and 32 of the Travancore Cochin Nurses and Midwives Act. Section 22 of the Act provides that subject to such conditions and on payment of such fee as may be prescribed by rules, any person who proves to the satisfaction of the Council that he has been registered as a Nurse or Midwife Auxiliary Nurse- Midwife or Health Visitor in any other State in India may be registered under the Act. Section 32(1) provides that no person other than one registered under the Act shall practice or hold himself out either directly or by implication, as a practicing Nurse or Midwife. However, second proviso to the section provides that Section 32(1) shall not apply to persons eligible for registration under the Act who after having filed application for registration are awaiting the decision of the State Council or of Government WPC .No.29926/09 :6 : in case of appeal. 13. Therefore, it is contended that since the petitioner had registered with the Rajastan Council and she had made application to the 3rd respondent as early as on 26.12.2006 she being eligible to practice as Auxiliary Nurse-Midwife, without awaiting for the State Council to grant registration, there is no rationale for providing registration in the State Council as a mandatory condition to make such person eligible to apply for the post of Junior Public Health Nurse Grade-II. 14. I am not in a position to appreciate this contention. It may be true that the Travancore Cochin Nurses and Midwives Act provides that a person like the petitioner can make an application to the State Council for registration and straight away practice as Auxiliary Nurse-Midwife without waiting for registration. But that does not mean that if the special rules provide registration as a mandatory condition, that special rule is illegal. It is the settled position of law that validity of one rule or law cannot be tested in the light of another one. In this case, admittedly, special rules provide for registration as a mandatory condition. A subordinate legislation can be successfully WPC .No.29926/09 :7 : challenged if it is arbitrary or against the parent rules. In this case I am not shown in what manner any of these grounds are available to invalidate the special rules. In my view, nothing is objectionable in the special rules, if it prescribes that registration with the Kerala Council will be one of the conditions to render a candidate eligible to apply. 15. The learned counsel for the petitioner then referred to Ext.P9, a notification issued for the post of Auxiliary Nurse- Midwives under the Insurance Medical Service, in which it is stated that those registered with another State Council are also eligible. Such prescription in Ext.P9 is because Special Rules for the post notified in Ext.P9 render such candidates also eligible, unlike Ext.P2 where registration with the Kerala Council is mandatory. Therefore Ext.P9 also does not in any manner, help the petitioner to sustain her plea to invalidate Ext.P2. Writ petition fails and is dismissed. (ANTONY DOMINIC) JUDGE vi/ WPC .No.29926/09 :8 :