HIGH COURT OF CHHATTISGARH AT BILASPUR i \ Wn't Petition No. 3289 of 2003 '1 Ms. P, A. Dolly —Vcrsus~ Managing Director, Bhilai Steel PlaJlt 8a others {7/ Post for order on gah‘ebruary, 2006. Sdl- Ji‘é iSotAish K. Agnihotri ‘ , Judge i . / / r //& ; ORDER ‘ (0g Februaly, 2006) 1 The following order of the Court was passed by Satish K. Agnihotri, J. 1. The instant petition'iiled under Alticle 226/ 227 of the Consu'tution of India seeks a dimction oxiginally against the respondents to appoint ‘tx the petitioner as Nursing Sister in the respondents—Hospital. Thereafter by way of amendment dated 11.7.2005 a new prayer i.e. 7.111 was added to the Cabot that the respondents géednected to w consider the petitioner’s case and to continue with her services as Nursing Sister. That the facts in nutshell are that the petitioner has completed four ’years Bachelor of Science (Nursing) course in Jawahar Lal Nehru Hospital and Research Center of the Bhilai Steel Plant, at Sector-9, Bhilai (for short ‘Hospita1’). After completion of the training (course, she was awarded a degree of Bachelor of Science (Nursing) from Ravi Shankar University, Raipur. By order dated 6.9. 1993 (Annexure P] 3), the petitioner was selected for appointment in the Hospital by the Respondent No.3 on purely temporary basis for a maximum period of four years only. The terms of appointment was that services of the petitioner was terminable without any previous notice, if the employee is unfit or is likely for a considerable time to continue unfit or if the employee is found guilty of any insuhordination, intemperance or any omer misconduct or breach of any rules pertaining to her service or conduct of non performance of her duties. The petitioner was further required to execute a bond for a period of four years w.e.f. 1.8.1996 (Annexure P/4). The petitioner completed (four years bond period of her service w.e.f. 1.8. 1996 to 31.7.2000 and g as such the petitioner was relieved from bond service of Bhilai Steel E .\> og Plant by order dated 3.8.2000 (Armexure PIS) w.e.£ 31.7.2000 (AN). According to the peh‘u'oner, the petitioner was given an understanding fhat the services of the petitioner, who had taken training in the Hospital, would be regulan‘zed. The Respondent No. 1 by letter dated 16.12.2002 (Annemre P/6) sent a call letter to the petitioner for interview for the purpose of appointment on the post of nursing sister. Along with the petitioner, several others were also sent the same call letter for interview. Her name and that of other eligible candidates were called from the employment. exchange. Acc&‘d1ng V!’ to the respondents, 64 candidates were called for interview, 63 candidates appeared in the interview, out of which 40 candidates were selected. The minimum qualifying marks in interview was 25. Theppetitioner could not succeed in the interview as she did not get the minimum qualifying marks i.e. 50%) ofthe total marks i.e. 50. Shri Kishore Bhaduri, learned counsel appearing for the petitioner submitted that the petitioner was required to execute a bondin the prescribed form to serve for four years in hospital or dispensary of the Steel Authority of India Ltd. The petitioner was denied the regular job which is contrary to clause VII 4 of the Prospectus for B.Sc. (Nursing) 1992-93. Clause VII 4 and 5, which reads as under:- “VII Admission for First Time xxx xxx xxx xxx xxx xJec xxx xxx m The candidate shall execute the bond in prescribed form to serve for 4 years in any hospital or dispensaiy of Steel Authority of India Ltd Registered Oj7ioe, Lodi Road, New Delhi. The last 3 years will be binding only if OJferedjob by SAIL. 5. The selection for Admission to course or execution of Bond does not carry any assurance for employment by Steel Authority of India Lid. or Bhilai Steel Plant or the college. 6.xxxxxxxxx” I. 2. 3. 4 I‘M Learned counsel further submitmd that in the letter dated 6.5.2002 (Annexure P/ 12) issued on the subject “Notjflcation of vacancies for the post of Nursing Sister under Medical Department under Employment Exchange Compulsory Notification of Vacancies Act 1959-60” it was provided that for appointment to the post of Nursing Sister the minimum qualification was B.Sc. in Nursing or equivalent i from any recognized Institute, with minimum two years experience in a 500 bedded hospital, and working experience in 0T5, ICUs and dialysis unit. It has been mentioned in the ‘requisi%:1 x" form for recruitment through employment exchange’. The respondents No. 1 to 3 thereafter relaxed the minimum qualification and experience to extend illegal favour to lesser qualified and lesser experienced persons. It is submitted that in second ‘requisition form for recruitment through employment exchange’ dated 7.10.2002 (Annexure R/ 1) wherein 5 posts out of 45 were kept reserved for a diploma holders Who were matriculate with “A”. grade diploma in general nursing (and midwifery for female candidates) and minimum 3 years experience in profession. The experience required for B.Sc. nursing was two years. It is further contended by- the petitioner that the petitioner would have been within the merit list had those hve posts were not reserved for diploma holders. The list of the successful candidates was prepared and published in the month of January, 2003; \7. Shri Pritinker Diwakar, learned Senior Counsel with Shri P. R. Patankar, learned Counsel appearing for the Respondents No. l to 3 submitted, per contra, that the petitioner was considered along with other 62 candidates for appointment on the post of nursing sister. 45 posts were available for appointment. Out of 45 posts, 40 posts were reserved for B.Sc. (Nursing) candidates and 5 posts were reserved for g ‘\ r 7. ..,« x K .../' \ . .. . . .. ... . diploma holders. By letter dated 7.10.2002 of the Manager (P-Recruiunent), nam€s of all the candidates were Iequisitioned through employment exchange. The expen'ence for B.Sc, course was two years axld for diploma holders 3 years. It is for the employer to decide as to how posts of nursing sisters be Eled up. The petitioner cannot challenge the policy of the Respondents No. 1, 2 and 3 to the effect that all 45 posts should have been kept reserved for B.Sc. (nursing), depriving the diploma holders, having more experience for A v‘ «x appointment on the post of nursing sister. It was nirtheigcontended p f’ that the submission of the petitioner that clause VII 4 of the prospectus of B.Sc.. (Nursing) 1992-93 that there was a pre condition to execute a bond for the regularizing the job of the candidates is not correct. Clause VII 5 makes it clear'that “The selection for admission to course or execution of Bond does not carry any assurance for employment by the Steel Authority of India Ltd. or Bhilai Steel Pant or the college”. 8. The petitioner has obtained less than qualifying marks i.e. 22.0 out of total marks 50 when other candidates, having obtained more than 25 marks out of 50 up to Srl. No. 42 have been selected for appointment. The merit list of the candidates dated 8.5.2003 is as under:— Srl. No. Roll No. Name of Candidate Category interview Marks 1 25015 Smt. M. Uma Genl. 44.,0 2. 25017 Smt. Lovely Shibu Genl. 43.5 3 25025 Kn. Nandita Choudhary Genl. 43.0 4 25019 Smt. Binu Shylu Genl. 43.0 5 25024 Smt. Pramila Martin Genl. 43.0 6. 25012 Ku. Kshama Genl. 42.5 7 25022 Smt. Renuka Neelam Nag Genl. 42.5 8 25026 Smt. Leena Henry Genl. 42.5 9 25010 Smt. Jaishree R Genl. 42.00 WW’ Man/n 10. 25009 Smt. Rita Bhatnagar Genl. 41.5 1 1. 2501 1 Smt. Liji Thomas Gall. 41 .5 12. 25014 Smt. Kaushalya Adhikari Genl. 41.0 13. 250 18 Smt. Shabana Qumshj Genl. 40.5 14. 25013 Smt. Messy Varghese Genl. 40.5 15. 25027 Miss; Pushplatha G€n1 40.0 16. 25016 Smt. Anjall Day Gcnl. 40.0 17. 25021 Smt.MeenakshjMiJka Sona Genl. 40.0 18. 25023 Rashmi Bala Masih Gen}. 39.5 19. 25020 Smt. Anita Banjamjn Genl. 39.5 20. 25028 Smt. Shobhna Nair Genl. W 21. 25029 Smt. Nisha Shanna Genl. 38.5 22. ‘ 25030 Miss Sandhya Devi Pandey Genl. 38.5 23. 25036 Smt. Anima A. .J. Gem. I 38.0' 24. 25045 Smt. Sumta Pandey Genl. 37.5 ' 2 25. 25044 Ku. Radha Gem. 37.5 26. 25043 Smt. Rukshana Chelak Genl. 37.0 27. 125033 Smt. Kama Raj Gem. 36.5 28. 25041 Smt. Grettle B. Paul Gsnl. 35.5 29. 25038 Smt. Vandana Knmar Genl. 35.0 30. 25032 Ku. J€ena Grewal Genl. 35.0 31. 25039 " Smt. Annei Binny Gem. 34.5 32. 25034 Smt. ‘ Banita Swain Genl. 34.5 33. 25037 Smt. Mercy Knmar Genl. 34.5 34. 25035 Smt. Wecna Dewangan Genl. 34.0 35. 25040 Smt. Tigi Samuel (16111. 34.0 36. 25048 Smt. G. Hemavati Genl. 33.0 37. 25046 Smt. Veena Rajput Genl. 31.0 38. 25052 Ku. Tripti Genl. 29.0 39. 25049 Smt. Shiji Shinodc Génl. 28.0 40. 25058 Ku. Chandramani Genl. 27.0 41. 25059 Miss Ashulata Gall. 26.0 42. 2503 1 Ku. Gayatri Gupta Genl. 23.0 43. 25042 Smt. P. A. Dolly Genl. 22.0 44. 25053 Smt. Jaymol R. Mathsw Genl. 21.5 45. 25056 Smt. Shobhi Sanjiv Genl. 2 1.5 46. 25047 K111 Seema Das Genl. 21.0 /‘/7 _,, ./. 9. The petitioner was called for interview as per letter dated. 7. 10.2002 (Annexure R/ 1) not as per the letter dated 6.5.2002 (Annexure P/ 2). Learned counsel prays for dismissal of the petition. Having heard learned counsel for the parties and having perused the documents appended to the pleadings as well as the original documents produced by the Respondents No. 1 to 3, it is evident that the interview had taken place on 27.2.2002, pursuant to the letter dated 7.10.2002, addressed to the Divisional Employment Exchange, and on the basis of names sent by the onice of the employment exchange. The said letter clearly provided that 45 posts of nursing sisters are available for appointment and out of which 5 posts will be reserved for diploma holders having 3 years experience and 40 posts will be open for the candidates having B.Sc. nursing degree with a minimum two years expcn'ence. Out of 40 posts, 9 posts were ‘\ . 47. 25051 Miss ShailajaPillai Gem. 20.0 48. 25050 Smt. Sum’ta Sahu Genl. 20.0 49. 25054 Smt. L€ena Shaji Genl. 19.0 50. 25057 Smt. Anu S. Thomas G€nl 19.0. 51. ‘ 25055 Smt. Sushila Siugh Gem, 18.0 52. 25065 Smt Chandrakala Genl. 18.0 53. 25064 Smt. Sita Parganiha Genl. 17.0 54. 25060 Ku. Niru Kuman' Genl. 17.0 55. 25061 Ku. Jyoti ’I‘hakur G€n1. 16.0 56. 25063 Smt. Preetha Sunil Genl. 0.0 absent 57. 25008 Ku. Sanju Sahu O.B.C. 3W0 58. 25002 Pmnima G€dam S.C. 43.5 59. 25004 Krishna Kumari S.C. 36.5 60. 25005 SmtDineshwan'Nagwanshi S.C. 36.5 61. 25001 Smt. Kamlsshwari Joshi S.C. 35.5 62. 25006 Smt. Uma Shendey S.C. ‘ 18.0 63. 25003 Sandhya Godamker S.C. 15.0 64. 25007 Smt. Shubhra Beny S.T. 16.0 rescrved for S.’I‘., 5 for S.C., 5 for O.B.C., 5 for Ex-Servicemen and 16 seats were available. for general candidates. Out of 5 seats reserved for diploma holders, one seat for S.C. and 4 seats were available for general candidates, The petitioner was sent call letter 011 16.12.2002 (Annexure P/6) for appearing for interview on 27.12.2002. The petitioner had executed a bond for the period of four years w.e.f. 1.8.1996 as per Part- I] of the order dated 11 September, 1996 (Annexure P/4). The petitioner had worked for four years w.e.f. 1.8. 1996 and she was relieved from bond service of Bhwfgteel Plant w.e.f. 31.7.2000 by order dated 9.8.2000 (Annexure PIS). Hence, the contention of the petitioner that bond executed was for regularizing the job is not sustainable, in View of clause VII 4. and 5. of the Prospectus for B.Sc. (Nursing) 1992-93 also. There is no discrimination and the policy is reasonable to provide an opportunity of appointment to the diploma holders also who have more experience than the candidates having B.Sc. (nursing). The letter dated 7.10.2002 Cannot be faulted with, as the petitioner participated in the selection process and obtained less than minimum qualifying marks i.e. 25 out of 50 as such she could not be appointed on the post of nursing sister. Learned counsel for the respondents No. 1 to 3 has cited a decision of the Supreme Court in Vijay Syal and another Vs. State of\Punjab and others (AIR 2003 SC. 4023) in support of his contention. The Supreme Court in para 12 held’as under:- “12.......F‘urther, the appellants, knowing the criteria hxed for selection and allocation of marks, did participate in the interview; when they are not successful, it is not open to them to turn around and attack the very criteria... .. ln Saxdara Singh and others Vs. State of Punjab and others AIR 1991 Sic. 2248 the Supreme Court in'para 4 held as under:- \71 t @ “Anna/Though WE find that the. procedure adopted by the Collector, in inviing applications s not commendable, but the griévance. would be voiced only by thc persons who did not have te opportunity to make applications wifhin the prescxibed pen‘od. But no such grievance could be raised by persons like the appellants. Undr those cimumstances, the procedure adopted, though ixregulr does not Vitiate th selection of candidates, ultimately made by the Committe.” 14‘ I Chandra Prakash 'l‘iwari and others Vs. hakimala Shukla and thers (2002) 6 S.C.C. 127 the Supreme Court n para 32 held as o i under: — 32.......It is temed hich stands barred and it is in this perspective in Om Prakas Shulda V. Akhilesh KumarShuklaQo a three—Judge Bench of this Court laid down in no uncertain terms that when a candidate appears at the exnation without protest and. subsequently found to be not successful in the examination, qt uesion of entertaining a petition challenging the said examination would not arise.” 15. The Supreme Court in Dalpat Abasaheb Solunke etc. V. Dr. B. s. Mahajan etc. AIR 1990 S.C. 434 in ara ~9 held as under:— p “9. ........It is needess to emphasise tha it is not the functionof the Court to hear appeals over the decisions of the Selecon Commttees and to scrutinize the relative merits of the candidates. Whether a candidate is tit for a particular post or not has to be decided by the duly censtituted Selection Committee whic has the expertise on the ubject. The Court has no suc exprtise. The decision of the Selection Committee can be interfered with only on limited grounds, suh as illegality or patent material iegularity in - the constitution o the Committee or its procedure vitiating the selection, r pmved mal tides ah‘ecting the selection etc. It is no dputed that in the preset case the University ad consituted the Committee in due complianc With the relevant statutes. The Committee consisted of experts and it selected the candidates after going through all he relevant material before it. In sitting n appeal over the selection so made and in sting it aside on the grotmd of the so called comparative merits of the candidates as assessed by t i h e a, e e x, n St .v v’V’ 3%“ y w h ami l t ti i h s h e c rr f o a t is n h t e t i et l 10 16. Applying settled legal position of law to the facts of tho case, it io established that the action of the Respondents No. 1 to 3 was not arbittmy or discriminatory and the selection of the other candidates in preference of the petitioner was in consonance with law. 1'7. costs. the Comt, ‘the' High Court want wrong and exceeded its Jurisdiction.” For the reasons stated above this petition is dismissed. No order as to Sdl- - Smash K.Agnihf’“ii i *V Judge .7. V _\ 1_