IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 4TH NOVEMBER 2011 / 13TH KARTHIKA 1933 WP(C).No. 27554 of 2010(T) -------------------------- PETITIONERS: --------------- 1. SANTHOSH P.G. 33/5521,"SREERAGAM",CHERUVALATHU, CHEVAYUR PO, KOZHIKODE-673 017. 2. BEENA V.I, VADAKKETHAKKAL HOUSE,NZHANGA HIRI PO, PALAKKAD DISTRICT. 3. RADHAMANI P.M, "GOVINDAM", ARANOLY HOUSE, CHERUKULATHUR PO,CALICUT-8. 4. V.LATHA, "ATHENA", EDAKANDY PARAMBA, NELLICODE PO, KOZHIKODE -16. 5. MALLIKA A.K, AMARAGANGA HOUSE,PALAKKOTTUVAYAL, KOTTAMPARAMBA PO, KOZHIKODE. 6. SOBHANA N,SHOBAS, KAMANNA, UMMALATHURUTHAZHAM,MEDICAL COLLEGE PO, 7. USHA M.V, AJAYA BHAVAN, M.N.R.A.209, EROOR WEST PO, TRIPUNITHURA - 682 306. 8. JAYAPRAKASH C.P.K, LAKSHMI NIVAS, ERAMAM PO, PAYYANNUR, KANNUR DISTRICT-670 307. 9. LAIZAMMA M.V, PULICKAL HOUSE, CHEVAYUR PO,KOZHIKODE. 10. LAILA RAMATH, "AISWARYAM",KIZHAKKILOTTU HOUSE, NEAR AIRTEL TOWER, PO KANOOL, KANNUR-670 564. 11. LALY V.R. THUMBAYIL HOUSE, MOOLEDAM PO, KOTTAYAM. :2: W.P.(C) 27554 O F 2010 12. SATHYABHAMA T.P, SOUPARNIKA, KAYARALAM PO,MAYIL VIA, KANNUR DISTRICT. 13. SEEMA A, PULIMOOTTIL HOUSE,PUNALOOR, KOLLAM DISTRICT. 14. VINODINI P.S, PILATHUMATHU HOUSE, MANNANAM PO,KOTTAYAM. 15. K.G.SUMATHY KUTTY, SURESH BHAVAN, KUZHAKETHIL AREEPARAMBU PO, KOTTAYAM. 16. SHYLAJA M, AKARSH, KALLIASSERI PO, KANNUR. 17. VINOD KUMAR N, VINOD BHAVAN, VALIYAVANKADU, VITHURA, MEMALA PO, THIRUVANANTHAPURAM. 18. ASHA S, DEVANS, CHEMPAKAMANGALAM, KORANI PO,ATTINGAL, THIRUVANANTHAPURAM-695 104. 19. AJITHAKUMARI S.L, S.K.HOUSE, PETTA, PAZHAKUTTY PO, NEDUMANGAD. 20. RASHEEDA P, KUNNATH HOUSE, ANDOOR, VADUVANCHAL PO, WAYANAD DISTRICT. 21. HAZELIN DEENA H,HARRY VILLA, NEAR MAHE RAILWAY STATION,AZHIYUR PO,CALICUT. 22. SHEEJA P, SREECHITRA QUARTERS C3-4, KUMARAPURAM, MEDICAL COLLEGE. 23. MARY P.V, ST.VINCENT DIABETES RESEARCH CENTRE, IRINJALAKUDA, THRISSUR-680 121. 24. JAYASREE P, TC.IX/278(I),SREE HARI, PONGUMOOD, MEDICAL COLLEGE PO, THIRUVANANTHAPURAM. 25. RAJI PAPPACHAN, THODATHU VILA, PADINJATTETHIL VEEDU, MULAVANA PO, KUNDARA, KOLLAM. 26. MERCY THOMAS, TC.33/510,JEEVAN BHAVANA, TITTANIUM PO, VETTUCAUD, THIRUVANANTHAPURAM-21. :3: WP(C) NO. 27554 OF 2010 27. GEETHA KUMARI T, TC.3/562, SIVASAKTHI, KULATHOOR PO, THIRUVANANTHAPURAM-83. 28. JAYA PRABHA S, REMANEEYAM, STATION KADAVU, KAZHAKUTTOM PO THIRUVANANTHAPURAM- 29. SOUMIA R.S, MATHALATHU HOUSE, MARUTHAMALA PO,VITHURA. 30. BIJI SEBASTIAN, TC.4/381,KOUDIAR PO,AMBALAMUKKU, THIRUVANANTHAPURAM. 31. NISHA V.RANI, MERA 18,NEAR TELECOM BHAVANA, MEDICAL COLLEGE PO, THIRUVANANTHAPURAM. 32. MOLY, THUNDAVILA PUTHEN VEEDU, MOONATTHIMUKKU, OTTASEKARAMANGALAM PO, 33. REKHA K.R, RAMACHANDRA, K.P.R.A-187, MADATHILCHIRA, ANAD PO, NEDUMANGAD, THIRUVANANTHAPURAM. 34. SAJITHA K.K, PILACHERRY HOUSE, PALIKARA PO, KOZHIKODE. 35. SHEEJA M.S, SHIJEE NIVAS, MANCHADI, PEYAD PO, THIRUVNANTHAPURAM. 36. SANGEETHA V, AISWARYA, TC,T/I 192(4), KOORA 241(A),VATTIYOORKAVU PO, THIRUVNANTHAPURAM. 37. MANJUSHA S, SANTHOSH BHAVANA, THALLACHIRA, MEMALA PO, VITHURA, 38. ANNAMMA EAPEN,VALAYIL HOUSE, KUNTHIRAKAL PO,THALAVADY, THIRUVALLA. 39. PUSHPAKUMARI K.M, TUTHI HOUSE, KALLIASSERI PO, NEAR KPRGHSS, KALLISSERI, KANNUR DISTRICT. BY ADV. MR. RAJU JOSEPH, SENIOR ADVOCATE MR. J.JULIAN XAVIER MR. FIROZ K.ROBIN :4: W.P.(c) 27554 OF 2010 RESPONDENTS: --------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, HEALTH AND FAMILY WELFARE(C)DEPARTMENT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF HEALTH SERVICES, DIRECTORATE OF HEALTH SERVICES, THIRUVANANTHAPURAM. 3. INDIAN NURSING COUNCIL, REPRESENTED BY ITS SECRETARY,COMBINED COUNCIL BUILDING, KOTLA ROAD, TEMPLE LANE, NEW DELHI-110 002. 4. INDIRA GANDHI NATIONAL OPEN UNIVERSITY, REPRESENTED BY ITS REGIONAL DIRECTOR, REGIONAL CENTRE, KALOOR PO, KOCHI-17. R1 AND R2 BY GOVERNMENT PLEADER MR. A. J. JOSE R3 ADV. MR. NOUSHAD THOTTATHIL,SC,INDIAN NURSING COUNCIL R4 ADV. MR. P.M.M.NAJEEB KHAN, SC IGNOU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO. 27554 OF 2010 APPENDIX PETITIONERS' EXHIBITS : EXT. P1 : TRUE COPY OF THE CERTIFICATE DATED 21.07.1997 ISSUED BY THE KERALA NURSES AND MIDWIVES COUNCIL EXT. P2 : TRUE COPY OF THE CERTIFICATE ISSUED BY THE INDIRA GANDHI OPEN UNIVERSITY TO THE 1ST PETITIONER. EXT. P3 : TRUE COPY OF THE CERTIFICATE ISSUED BY THE INDIAN NURSING COUNCIL. EXT. P4 : TRUE COPY OF THE LETTER DATED 14.06.2001 EXT. P5 : TRUE COPY OF THE LETTER DATED 12.08.2003 ISSUED BY THE PROGRAMME IN CHARGE OF INGNOU STUDY CENTRE COLLEGE OF NURSING, THIRUVANANTHAPURAM. EXT. P6 : TRUE COPY OF THE MINUTES OF THE NATIONAL EMPLOYMENT SERVICE ISSUED BY THE DIRECTOR GENERAL OF EMPLOYMENT AND TRANINING. EXT. P7 : TRUE COPY OF THE TABLE SHOWING THE SUBJECT STUDY OF AND THE HOURS ALLOTED FOR THEORY AND PRACTICAL IN EACH SUBJECT OF INGNOU AND ALL INDIA INSTITUTE OF MEDICAL SCIENCE. EXT. P8 : TRUE COPY OF THE LETTER DATED 30.04.2005 ISSUED BY THE SECRETARY, GENERAL EDUCATION (E) DEPARTMENT. EXT. P9 : A COPY OF THE ORDER DATED 26.04.2005 ISSUED BY THE REGISTRAR, KANNUR UNIVERSITY. EXT. P10 : TRUE COPY OF THE ORDER DATE 10.05.1993 ISSUED BY THE REGISTRAR, COCHING UNIVERSITY OF SCIENCE AND TECHNOLOGY. EXT. P11 : TRUE COPY OF THE SPECIAL RULES. EXT. P12 : TRUE COPY OF THE LETTER OF THE 2ND RESPONDENT DATED 15.07.2010 TOGETHER WITH THE COPY OF COMMUNICATION FOR- WARDED TO THE DIRECTORATE OF MEDICAL OFFICER DATED 28.07.2010 EXT. P13 : TRUE COPY OF THE JUDGMENT DATED 18.10.2007 IN W.P.(c) 30950 OF 2007 EXT. P14 : TRUE COPY OF THE ORDER DATED 01.07.2008 ISSUED BY THE 1ST RESPONDENT. EXT. P15 : TRUE COPY OF THE RELEVANT EXTRACT OF THE SYLLABUS OF B.SC. NURSIING (POST BASIC) DEGREE COURSE ISSUED BY THE M.G. UNIVERSITY. :2: W.P.(c) 27554 OF 2010. EXT. P16 : TRUE COPY OF THE FORWARDING LETTER DATED 15.07.2010 ISSUED BY THE 3RD RESPONDENT. EXT. P17 : TRUE COPY OF THE RELEVANT PORTION OF STUDENT HAND BOOK AND PROSPECTUS FOR 1997 EXT. P18 : TRUE COPY OF THE RELEVANT EXTRACT OF PROSPECTUS PUBLISHED BY IGNOU IN JANUARY 2004 EXT. P19 : TRUE COPY OF THE PROGRAMME SCHEDULE FOR B.SC. NURSING III YEAR FOR THE YEAR 2003 CONDUCTED AT COLLEGE OF NURSING THIRUVANANTHAPURAM. /TRUE COPY/ P.A. TO JUDGE P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~ W.P (C) No. 27554 of 2010 ~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 4th day of November, 2011 JUDGMENT The issue involved in this Writ Petition is, whether the nursing degree issued by the IGNOU (Indira Gandhi National Open University) is liable to be reckoned for granting promotion to the post of Nursing Tutor. 2. The petitioners are working as head nurses/staff nurses, appointed through the PSC on the basis of the qualification prescribed and in compliance with the relevant Rule. At the time of filing the Writ Petition, the petitioners 1 to 16 and 39 had completed the course and degree was awarded by the 4th respondent, while the petitioners 17 to 38 were stated as undergoing the degree course. 3. The 4th respondent IGNOU is a body constituted under Indira Gandhi National Open University Act 1985, so as to provide better education in various fields and meet the need of the general public, encouraging Open University and Distance Education System. The nursing degree awarded by the said respondent is stated as recognized by the 3rd respondent, Indian Nursing Council as borne by Ext. P4, wherein it is clarified that the persons with the degree awarded by the W.P. (C) No. 27554 of 2010 : 2 : 'IGNOU' are eligible for registration with any of the State Nursing Council. The first respondent State of Kerala has also recognized the degree awarded by the 4th respondent, which is discernible from Ext. P4 proceedings dated 30.04.2005. The status of the degree awarded by the 'IGNOU' has been recognized by the Central Government as well, as borne by Ext. P6. The Kannur University, as well as the Cochin University of Science and Technology, have also passed necessary orders recognizing the degree awarded by the 4th respondent 'IGNOU', as per Exts. P9 and P10 proceedings. 4. The case of the petitioners is that, the next promotion post that could be obtained by the petitioners is that of the 'Nursing Tutor', for which, the qualification prescribed as per the relevant rules; a copy of which has been produced and marked as Ext. P11, is M.Sc. Nursing or B.Sc. Nursing (Basic or Post Basic) from a recognized University in the case of 'Direct Recruitment'; while in the case of appointment by transfer, an alternate qualification of Diploma in Nursing Education and Administration is also provided. In the course of steps to fill up the vacancies by service candidates, necessary instructions were given by the concerned respondent to prepare the seniority list. When such steps were being pursued excluding the persons like the petitioners, W.P. (C) No. 27554 of 2010 : 3 : some of them approached the second respondent by projecting their grievance. Since no response was forthcoming, they approached this Court by filing W.P(C) No. 30950 of 2007, which culminated in Ext. P13 verdict, directing the State to consider the grievance projected by the petitioners and to pass appropriate orders therein within the specified time. 5. Pursuant to the above direction, the matter was considered by the Government, who passed Ext. P14 order dated 01.07.2008, stating that, the degree/diploma awarded by the IGNOU for Nursing cannot be considered as equivalent degree awarded by any of the Universities in Kerala, which forms the subject matter of challenge in this Writ Petition. It is contended by the petitioners that, in spite of issuing Exts. P3 and P4 by the Indian Nursing Council much earlier, recognizing the degrees, particularly the degree awarded by the 'IGNOU', the said council later took a different turn in view of Ext. P14 order passed by the State and passed a resolution holding that the course is not approved by the Indian Nursing Council, as given in Ext. P16. The petitioner is challenging the said proceedings as well. 6. During the course of hearing, the learned senior counsel Sri. Raju Joseph appearing for the petitioners submits that the reasoning W.P. (C) No. 27554 of 2010 : 4 : given by the State in Ext. P14 that the degree/diploma awarded by the IGNOU is not liable to be reckoned, is presumably on the basis of the fact that no practical training is being imparted by the 'IGNOU'. The factual position is sought to be controverted with reference to Exts. P17 and P18 syllabus, which gives a comparative data in respect of the course materials and practical training in different disciplines, provided by the 'IGNOU'. The learned counsel submits that no such factual analysis has been conducted by the State while passing Ext. P14, besides the fact that Ext. P8 passed by the first respondent/State itself has been given a go-bye, when the proceedings were finalized pursuant to Ext. P13 judgment by passing Ext. P14 order. 7. The learned Government Pleader appearing for the first respondent sought to reiterate the position as contained in Ext. P14 stating that the degree awarded by the 4th respondent is by way of 'distance education' and further, it being a course intended for the students who are already in the field as discernible from Ext. P15, no interference is warranted. It is also stated that the Indian Nursing Council/3rd respondent passed Ext. P16 resolution only subsequently, disapproving the said course. On going through Ext. P16, it is quite evident that, such an observation has been made with reference to the W.P. (C) No. 27554 of 2010 : 5 : decision taken by the State as per Ext. P14 and not by virtue of any independent analysis on actual facts and circumstances, to take a different view than the view already taken by the INC while issuing Exts. P4 and P6. 8. Coming to the crucial question as to whether the Rules for recruitment to the post of Nursing Tutor prescribes any distinction, it has to be borne in mind, that the same only stipulates the possession of a degree as mentioned herein before and nothing more. In other words, no distinction is sought to be made with regard to the regular course or the course like the one conducted by the 4th respondent/IGNOU. 9. A similar case as involved herein, in respect of the post graduate qualification of M.Sc. Chemistry awarded by regular course and the similar degree obtained by way of distance education or correspondence course, had come up for consideration before the Division Bench of this Court in State of Kerala and Others Vs. Thulasibai and others (2011 (3) KHC 65). Referring to the Special Rules and the requirements thereunder, it was held by the Division Bench that, when the Special Rules do not make any distinction between the post graduate degree obtained after regular course and W.P. (C) No. 27554 of 2010 : 6 : the one obtained through correspondence/distance education, promotion of a candidate who acquired the post graduation through distance education cannot be denied. This Court finds that the said dictum is equally applicable to the case in hand as well. 10. In the above circumstances, this Court holds that the petitioners are liable to be declared as eligible to be included in the list of candidates for promotion to the post of Nursing Tutor, in view of the rules formulated and notified as borne by Ext. P11 and it is declared accordingly. The respondents are directed to take necessary follow-up steps to enlist the petitioners accordingly and to consider their candidature in respect of the posts in question. The proceedings as above shall be finalized as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this judgment. The Writ Petition is disposed of. P. R. RAMACHANDRA MENON, JUDGE kmd