IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7006 of 2002 1.SULEKHA KUMARI daughter of Sri Bhagwan Prasad Mehta and wife of Sri Arvind Kumar, resident of Village Bahadurpur, P.S. Sabour, District Bhagalpur. 2.Asha Kumari, daughter of Sri Mahesh Prasad Mandal and wife of Sri kunj Bihari Mandal, resident of village Bahadurpur, P.S. Sabaour, District Bhagalpur. Versus 1.THE STATE OF BIHAR 2.The Commissioner and Secretary, Health Department, Government of Bihar, Patna. 3.The Commissioner and Secretary, Medical Education, Family Welfare and Indigenous System of Medicines, Government of Bihar, Patna. 4.The Director-in-Chief, Health Services, Government of Bihar, Patna. 5.The Director, Secondary Education, Bihar, Patna. 6.The Bihar Public Service Commission through its Secretary, 15, Jawaharlal Nehru Marg (Balley Road) Patna-800001. 7.The Chairman, Bihar Service Commission, 15, Jawahar Lal Nehru Marg (Balley Road), Patna-80001. ----------- 5 19.7.2010 Heard Mr. Gyanendra Roy, learned counsel for the petitioner, learned counsel for the State as also learned counsel for the Bihar Public Service Commission. Prayer of the petitioners in this writ application reads as follows:- “That this writ application has been filed for quashing the relevant part (Paragraph No.7) of the Memo No.221 (6) dated 1.4.2002, so far it relates to the petitioners, issued under the signature of the Director-in-Chief, Health (Medical Education, Family Welfare and Indigenous System of Medicines) Department, Government of Bihar, Patna, by which it has wrongly and illegally been decided that the petitioners, whose names have been recommended by the Bihar Public Service Commission for appointment of the post of A.N.M. shall not be appointed, because they have only received vocational education in nursing, but have not received regular A.N.M. Training. This writ application has also been filed for holding that the petitioners have already successfully completed one year training in Nursing 2 and Mid-wifery from Jawahar Lal Nehru Medical College and Hospital, Bhagalpur and, therefore, the impugned order/decision dated 1.4.2002 (Annexure-1) not to appoint the petitioners on the post of A.N.M. insite of the recommendation made by the Bihar Public Service Commission is based on non existent ground and the same has been issued without proper application of mind. This writ application has also been filed for commanding the respondent State of Bihar and its authorities to immediately issued letters of appointment and posted of the petitioners on the post of A.N.M. in the pay scale of Rs.4000-6000 along with other admissible allowances.” With reference to the aforementioned relief learned counsel for the petitioners would submit that after the Bihar Public Service Commission (hereinafter referred to as the Commission) had advertised the post of Auxiliary Nurses and Mid-wifery (A.N.M.) and had held the selection process as also recommended the name of the petitioners, the decision of the State Government refusing to appoint the petitioners on the post of A.N.M. by the impugned order dated 1.4.2002 only on the ground that they had not undergone the training for the post of A.N.M. in a regular course and had obtained such qualification by way of vocational course could not have weighed against them. In this context he has also invited attention of this Court towards the marks issued by the Bihar Intermediate Council pertaining to the petitioners for their Intermediate Vocational examination and the certificates issued by Jawahar Lal Nehru Medical College and Hospital, Bhagalpur as with regard to the petitioners having undergone training course in Nursing and Mid-wife. He would, accordingly submit that the decision of the Government denying them to appoint on the post 3 of A.N.M. is wholly arbitrary. Counsel for the State with the help of counter affidavit filed by him would submit that in view of there being specific requirement in the advertisement of the candidates having passed the A.N.M. training examination, the petitioners having passed only I.A. Vocational Courses Examination cannot be permitted to equate their qualification as per the advertisement. In this context a further plea has been taken in the counter affidavit that the Vocational courses of Nurses has not been recognized under the Indian Nursing Council Act, 1947. Counsel for the Commission, who has not filed any counter affidavit, would submit that the recommendation made by the Commission by taking plea that verification of the certificate as per terms of the advertisement is the job of the Government and therefore if the government has found the petitioners to have not fulfilled the prescribed qualification the Commission has got little to do with this subsequent event, inasmuch as, Commission becomes functus officio after sending recommendation in response to the requisitions made by the Government. The first and foremost question therefore would be as to whether the petitioners have fulfilled the prescribed qualification for the post of A.N.M.. In this context though the petitioners have not brought advertisement in question on record, the respondent-State in its counter affidavit, vide Annexure-A, has placed the advertisement in question from which it would be clear 4 that for around 4000 vacancies on the post of Female Health Worker (A.N.M.) the prescribed qualification was matric or equivalent and also having passed the A.N.M. training course. Additionally, it was provided that such candidates must be registered as A.N.M. in Bihar Nurses Registration Council. From reading of the requirement in the advertisement, it would be clear that the completion of the courses of A.N.M. was one which was recognized by the Bihar Nurses Registration Council. It is in this context that the stress given by the Respondents to the non recognition of the vocational course conducted by the Government of Bihar and/or other Universities including Intermediate Council to the A.N.M. course becomes relevant. In this context Indian Nursing Council Act, 1947 itself provides recognition of qualification and maintenance of roll of nurses by the State Council. Once this fact is admitted that the petitioners were never registered with the Bihar Nurses Registration Council, it would automatically follow that the vocational course undergone by the petitioners for completing their intermediate examination had also not made them qualified the post of A.N.M. advertised by the respondents. Registration of Nurses by Bihar Nurses Registration Council an offshoot of Indian Nursing Counsel could only be made if the nurses had passed the qualifying examination from the Institute/Nursing Schools recognized by Indian Nursing Council. The Herculean efforts of Mr. Roy to establish 5 equivalence of the qualification undergone by the petitioners, pursuing their vocational course for its being treated to be at par with the A.N.M. course provided by the Indian Nurses Council can be appreciated by this Court to the permissible extent but then a writ Court under Article 226 of the Constitution would be wholly ill equipped in making such comparative equivalence of degrees. Reference in this connection may be made to a division bench judgment in the case of Satyendra Singh & Ors. Vs. Sanjay Kumar & Ors. reported in 2001(1) PLJR 104 wherein this Court had held as follows:- 12. Prescribing qualification for a particular post by the competent authority is a policy decision. The Government frames a policy after taking into consideration the number of facts and circumstances, expert opinion and other relevant considerations. The power of judicial review in such matters is limited. The Court can interfere only when the authorities have acted arbitrarily or in violation of the statutory or constitutional provisions. The Court does not sit as an appellate forum in disguise over the policy matter. It has no power to re-frame the policy matter and in case the policy matter is found suffering from any legal infirmities as indicted above, then the same is to be struck down and the matter is sent to the authority to consider the policy matter in accordance with law laid down. If the rules have been framed prescribing the qualification for a particular post, the Court has no power to re-frame the rules or supplement the rule by adding additional qualification for the simple reason that this is a function of the appointing and in the case of any legal lacuna the Court can only direct the appointing authority to consider the matter on the basis of the expert opinion and other relevant consideration. The Court cannot on the basis of the documents appended with the affidavit determine the equivalence or addition of qualification in the recruitment rules. 15. Thus, the law is settled that when the recruitment rules provide for a requisite qualification and the question arises as to whether any other qualification is equivalent to the qualification prescribed in the recruitment rules or not, then that question has to be decided by the competent authority and the Court 6 cannot amend the rule or reframe it and the Court can only direct the concerned authority to re-examine the matter specially in a technical matter, like this, after obtaining the expert’s opinion. The Court cannot take a final decision on the basis of affidavit and the opinion of the expert and decide such matter. The power of judicial review in such a matter is very limited and in case if the State Government decides the matter and the same is found to be arbitrary, mala fide then the Court will consider the same keeping in view the scope of judicial review in such matter. 18. The question involved in the case relates to filing up technical posts and as such it cannot be decided on the basis of certain documents appended with the affidavit by the Court in view of the settled law regarding the power of judicial review by the Apex Court in such matter. In that view of the matter, the learned Single Judge was not justified in deciding the question that qualification possessed by respondent no. 1 was equivalent to the qualification prescribed in the Recruitment Rules inasmuch as that amounts to amending the rules and re-framing the rules which is not permissible in law…” From the documents relied by the Counsel for petitioner, namely the certificates granted by the Bihar Intermediate Education Council it clear that the petitioners had passed Intermediate Vocational Examination but then requirement of the advertised post was that the candidates should have undergone courses recognized by the Indian Nurses Council also registered as a nurse under the Bihar Nurses Registration Council. That being the essence of the requirement of the advertisement, this Court will have no hesitation in holding that the petitioners did not fulfil the prescribed qualification as laid down in the advertisement and therefore, the authorities of the State Government cannot be faulted in either making screening of all the recommended candidates or rejecting large number of them on the grounds they had not fulfilled the prescribed qualification. 7 This Court, however, must note the last submission of Mr. Roy that once the government had itself announced with regard to continuance of the Vocational Educational Programme, the same would bind the government if not by doctrine of estoppel at least by legitimate expectation for the students having undergone such course. In the opinion of this Court, such an argument of counsel for the petitioner is one of desperation, inasmuch as, the doctrine of legitimate expectation has a limited operation and cannot override statutory provisions. When the statutes is absolutely clear and unambiguous as with regard to qualification for A.N.M. there would be no question in giving any benefit to the petitioner by way of legitimate expectation. That being so, this Court would find no merit in this application and the same is, accordingly, dismissed. Abhay Kumar ( Mihir Kumar Jha, J.)