IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 24.11..2009 CORAM: THE HONOURABLE MR. JUSTICE R.SUDHAKAR W.P. No.25065 of 2007 ....... Kanagalakshmi ...Petitioner Vs. 1.The Director, Directorate of Medical Education, Kilpauk, Chennai.10. 2. State of Tamil Nadu, rep. By its Health Secretary, Ministry of Health, Secretariate, Chennai.9. 3. J. Sornam 4. T.V.Mallika (cause title amended as per order dt. 29.10.2007 in MP No.3/2007) ... Respondents Prayer: Petition filed under Article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus calling for the records in G.O.(D) No. 682 and G.O.(D) No. 804, dated 29.5.2007 and 29.6.2007 respectively issued by the second respondent and quash the same and consequently directing the first respondent to promote the petitioner as Lecturer in Nursing in the speciality of Community Health Nursing. For Petitioner : Mr. A.L.Somayaji, Sr. Counsel for M/s. Narmada Sampath For Respondents : Mr. A. Suresh – R1 & R2 Govt. Advocate No Appearance – R3 Mr. P. Narayanamurthi - R4 ORDER This writ petition is filed to call for the records in G.O. (D) No. 682, dated 29.5.2007 and G.O.(D) No. 804, dated 29.6.2007 issued by the second respondent and quash the same and consequently https://hcservices.ecourts.gov.in/hcservices/ direct the first respondent to promote the petitioner as Lecturer in Nursing in the speciality of Community Health Nursing. 2. The petitioner joined as staff nurse in the Government General Hospital, Chennai on 6.4.1979 and was working as Nursing Staff Tutor from 1999 to 15.6.2003 in the school of Nursing in Government General Hospital. She qualified herself in B.Sc., Nursing in Madras Medical College during the period from September 1986 to February 1989. She worked as Staff Nurse in Government Royapettah Hospital from March 1989 to April 1989 and Special Grade Staff Nurse from April 1989 to February 2004. She was promoted and appointed as Nursing Tutor in Government Stanly Hospital, Chennai on 19.2.2004. The petitioner passed M.Sc., Nursing (Speciality in Community Health Nursing) in Tamil Nadu Dr. M.G.R. Medical University in the examination held in March-2006. The petitioner is now working as Nursing Tutor Grade-II, in Government Stanly Hospital, Chennai. On 12.2.2004, the first respondent, Director of Medical Education, in ref. No. 80233/N2/2002, promoted staff nurses working in different hospitals as Nursing Tutor Grade-II subject to eligibility. The promotion and posting order contains the list of persons as per seniority and the name of the petitioner is at Sl.No.32 and she was posted as Nursing Tutor Grade-II at Government Stanly Hospital, Chennai, a newly sanctioned post. In that list, the name of the third respondent is at Sl.No.38 and the fourth respondent is at Sl.No.36. 3. The next avenue of promotion for a Nursing Tutor Grade- II is the post of Lecturer in Nursing and the petitioner, who has completed master degree in Nursing i.e. M.Sc. Nursing (Speciality in Community Nursing) during March 2006 became eligible to be considered for the post of Lecturer in Community Health Nursing. In this regard, a representation was made to the second respondent on 18.5.2007 to include her name in the panel for promotion to the post of Lecturer in Community Health Nursing. The petitioner clearly pointed out that she stands first in the seniority list at S.No.32 in the above subject as already referred to above. 4. The petitioner has seven years experience in Community Health Nursing. The petitioner was working as Nursing Tutor Grade-II at Government General Hospital, Chennai. Inspite of her educational qualification and experience as Nursing Tutor Grade-II, the name of the petitioner was not considered for being promoted to the post of Lecturer in Community Health Nursing in the impugned proceedings. 5. On the contrary, in G.O.Ms.No. 682, dated 29.5.2007, the number of vacancy for Community Health Nursing in the panel of the year 2007-2008 has been shown as 2 (two) and for the two vacancies, two persons namely one Jahitha and Mallika were considered and appointed. Based on the said G.O., the first respondent issued the following order:- https://hcservices.ecourts.gov.in/hcservices/ " Ref.No. 66006/N2/2006 Directorate of Medical Education, Kilapuk, Chennai.10. Dated: 6.6.2007 Sub: Nursing Establishment – Tamil Nadu Medical Services – Panel for the post of Lecturer in the various specialities for the year 2003-2004, 2004-2005 and 2006-2007 – Approved - G.O.issued – Reg. Ref:G.O.(D) No. 682/H&FW (AA1), Dept., dt. 29.5.2007. ------- The promotion counselling in respect of the following Nursing Tutor Grade II and Maternal Child Health Officer promoted as Lecturer in Nursing in the various speciality in the G.O. Cited will be conducted in the office of the Director of Medical Education, Chennai on 11.6.2007. The following Nursing Tutor Grade II and Maternal Child Health Officer are requested to attend the promotion counselling on 11.6.2007 without fail along with the service certificate. sl.No . Name, Designation and Present Institution Speciality 1 Tmt. R. Vijayakumari, Nursing Tutor Grade II, Kilpauk Medical College Hospital, Chennai. Psychiatric Nursing 2 Tmt. S. Arulmary, Nursing Tutor Grade II, Govt. General Hospital, Chennai. Paediatric Nursing 13 Tmt. P. Mallika Nursing Tutor Grade II, Coimbatore Medical College Hospital, Coimbatore. Paediatric Nursing 4 Tmt. S. Jahitha Maternal Child Health Officer, District Family Welfare Bureau, Trichy Community Health Nursing https://hcservices.ecourts.gov.in/hcservices/ sl.No . Name, Designation and Present Institution Speciality 5 Tmt. T.V. Mallika Nursing Tutor Grade II, Govt. Headquarters Hospital, Chennai. Community Health Nursing 6 Tmt. S. Poonguzhali Nursing Tutor Grade II, Govt. Headquarters Hospital, Cuddalore. Medical and Surgical 7 Tmt. A.S. Thahira Begum Nursing Tutor Grade II, Chengalpattu Medical College Hospital, Chengalpattu Medical and Surgical. The Heads of Medical Institution concerned are requested to inform the above Nursing Tutor Grade II and Maternal Child Health Officer and to issue service certificate to participate in the counselling. Head of institution concerned are requested to exhibit the circular in the Notice Board and ensure that there should not be any way for complaint of unawareness of the counselling. " 6. The petitioner's name did not find place in the promotional counselling list, which was held on 11.6.2007. The name of S.Jahitha and T. MalliKa alone were included in the promotional counselling list in ref. No. 66006/N2/06, dated 5.6.2007. Aggrieved by the non inclusion of her name, the Petitioner filed a writ petition in W.P.No. 20052 of 2007 and this Court, passed an interim order dated 9.6.2007 as follows:- "Proposed counselling may go on. Passing of final order is stayed" 7. In spite of the order of this Court as above, the impugned proceedings has been passed by the respondents and the name of the petitioner was not considered. Hence, the writ petitioner had no other option except to challenge the impugned order in G.O.D.No 682, dated 29.5.2007 and the amended order in G.O. (D)No. 804, dated 29.6.2007 wherein the name of one candidate was deleted and another included. 8. Learned senior counsel Sri.A.L.Somayaji appearing for the petitioner submits that no panel was prepared in the years 2003- 04, 2004-2005 and 2005-2006 and only for the year 2007-2008, the panel was prepared and in respect of Community Health Nursing, the vacancy during March 2007 was two. For the said vacancy, all the eligible candidates should have been considered based on the https://hcservices.ecourts.gov.in/hcservices/ seniority and educational qualification. In the present case, the Government had relaxed certain qualifications and that is found in paragraph 3 of the G.O. (D)No. 682, dated 29.5.2007, which reads as follows:- (3). The Government hereby approve the panel consisting of Nursing Tutors, Grade II, as suitable for appointment as Lecturer in Nursing in four Specialities in relaxation of Rule relating to experience, qualification in teaching for the years 2003-2004, 2004-2005 and 2006-2007 in the order of preference given below:- Sl.No. Name of the Candidate Speciality Year of Panel 1 Tmt. R. Vijayakumari Psychiatric Nursing 2003-04 2 Tmt. S. Arulmary Paediatric Nursing 2003-04 3 Tmt. P. Mallika Paediatric Nursing 2004-05 4 Tmt. S. Jahitha Community Health Nursing 2003-04 5 Tmt. T.V. Mallika Community Health Nursing 2003-04 6 Tmt. S. Poonguzhali Medical and Surgical 2006-07 7 Tmt. A.S.Thahira Begum Medical and Surgical 2006-07 (emphasis supplied) 9. The learned Senior Counsel submitted that the petitioner is senior to respondents 3 and 4, as stated earlier. In the seniority list in the panel for promotion to the cadre of Nursing Tutor Gade- II in proceedings dated 12.2.2004 the petitioner is in Sl.No. 32. At the time of preparing the panel in March 2007, the petitioner was qualified both by way of experience as well as in educational qualification. 10. The claim of the petitioner was overlooked without any just or reasonable cause. In the subsequent G.O.No. 804, dated, 29.6.2007, the Government considered the case of Sornam, who is also a junior to the petitioner and while considering the case of P.Sornam, the Government has failed to take into consideration that the petitioner was fully qualified to hold the post of lecturer in Nursing as she possessed a Master Degree in Nursing. There is no reason given as to why the claim of the petitioner was over looked. 11. The next contention raised by the learned senior counsel for the petitioner is that while considering the case of the https://hcservices.ecourts.gov.in/hcservices/ third and fourth respondents, the Government has misconstrued Adhoc Rules relating to the post of Lecturer in Community Health Nursing in the College of Tamil Nadu Medical Services. In the impugned Government Order in G.O.No. 804, dated 29.6.2007, the Government has shown the qualification as follows:- "(b) Qualification:- (i) No person shall be eligible for appointment to the post unless he possess a Master's Degree in Nursing in the Speciality concerned or its equivalent recognized by the Indian Nursing Council and Teaching experience for a period of not less than 3 years in Nursing." Whereas, by amended Government Order, which has come into effect on 16.6.2000, Rules 3 and 4 stands modified as follows:- " (1) in rule 3, for sub-rule (a), the following sub rule shall be substituted, namely:- (a) Appointment to the post shall be made as follows:- (i)By transfer from the posts of Nursing Superintendents Grade I in Category 2 or from the posts of Nursing Tutors, Grade-I, in Category-3 of Branch II Nursing: or (ii)By promotion from the posts of Nursing Superintendents Grade II in Category-2 or from the posts of Nursing Tutors, Grade II in Category-3, of Branch -II Nursing or from the posts of Public Health Nurse in the Tamil Nadu Medical Service; or (iii) By recruitment by transfer from the category of Public Health Nurse in the Tamil Nadu Public Health Service or from the posts of Nurses Category in the Tamil Nadu Medical Subordinate service; or (iv) By direct recruitment. (2)in rule 4, in sub-rule (b) for clause (i) the following clause shall be substituted namely;- " (i) No person shall be eligible for appointment to the post unless he possesses a Masters' degree in Nursing in the speciality concerned or its equivalent, recognised by the Indian Nursing Council." (emphasis supplied) 12. The qualification that is required for appointed to the post of Lecturer in Community Health Nursing is that the candidate should have possessed Master degree in Nursing or an equivalent recognised by the Indian Nursing Council. The clause specifying three years experience in Nursing was deleted by the amendment which came into force on 16.6.2000. In such view of the matter, the petitioner is entitled to be considered to the post of Lecturer in Community Health Nursing on the date when the panel was prepared in https://hcservices.ecourts.gov.in/hcservices/ march 2007 as the petitioner has the requisite qualification and seniority. The need for experience having been deleted, the case of the petitioner stand on a better footing compared to that of the respondents. 13. He therefore, submitted that non inclusion of the petitioner in the panel and non consideration of her name to the post of Lecturer in Nursing is a clear case of arbitrariness and the claim of the petitioner has been overlooked by considering the case of the respondents 3 and 4 for promotion to the post of Lecturer, who are far junior to the petitioner. 14. A counter has been filed by the first respondent/Director of Medical Education. In paragraph 3 of the counter affidavit, it is clearly stated that the crucial date of preparation of panel to the post of Lecturer in Nursing is in March 2004 and that will apply to all the relevant years including the year 2007. It is not in dispute that no panel was prepared in the year 2003-04 and for subsequent period. It is only in the year 2007-2008, that a panel was prepared. During the relevant time, (i.e.) in March 2007, the petitioner is fully qualified as she holds a Master degree of Science in Nursing. The question of three years experience does not arise in view of the aforesaid amendment to the rules. The stand taken by the respondents with regard to qualification and experience does not have any merit in view of the amendment dated 16.6.2000 and the crucial date when the panel is to be prepared. In paragraph 7 of the counter affidavit, it is stated that at the time of drawing the panel in March 2003, the petitioner did not have the degree of Master of Science in Nursing and she had the degree of B.Sc., Nursing and therefore, she was not considered. This contention of the counter affidavit cannot be accepted since the panel if any was prepared in the year 2007. If there was any vacancy in the year 2003-04, there was no bar to prepare a panel . That no panel was prepared for several years is not disputed. The panel if any prepared for selecting candidates for the promotional counselling list in ref.No. 66006/N2/06, dated 5.6.2007 will be relatable to March 2007 which is the relevant date and not the earlier years. The reasoning stands confirmed as could be inferred in para 3 of G.O.(D) 682, dated 29.5.2007 which relaxed the rule relating to experience, qualification in teaching for Nursing Tutors Grade-II for the year 2003-04, 2004-05, 2006-07. The contesting respondents did not have the requisite experience and the rule was relaxed to include their names. This only clear the doubt that the panel was prepared only in March 2007. The reference to experience mentioned in G.O.682, dated 29.5.2007 is not relevant any more in view of the amendment. This Court is constrained to refer to para 3 of the G.O.No.682, dated 29.05.2007 only to show that there was no panel prepared for the year 2003-04 to 2006-07 and hence, the petitioner's name ought not to have been ignored while preparing the panel in March 2007. The respondents have artificially created a fiction to state that the https://hcservices.ecourts.gov.in/hcservices/ panel is of the year 2003. The respondents have not shown as to how the panel can be treated to be retrospective when actually it is prepared in March 2007. This is apparent because the Government included the name of contesting candidates by relaxing certain conditions in favour of one or other persons and thereby disentitled the petitioner's lawful claim. 15. The respondents 3 and 4 have entered appearance through counsel and filed a counter stating that the petitioner qualified the Master Degree of Nursing in 2006. petitioner did not have the three years experience at the time of counselling. 16. This issue has already been answered and stands resolved in favour of the petitioner in view of the amendment to Ad-hoc Rules on 16.6.2000. On the date of preparation of panel in 2007, the Petitioner was qualified in Master Degree and therefore, her claim cannot be overlooked as she has the seniority over other respondents and that fact is not disputed. The two Government Orders, which are under challenge in this writ petition suffer from vice of arbitrariness and discrimination. The names of the 3rd and 4th respondents have been considered, overlooking the merit of the petitioner. This petitioner who is senior to respondents 3 and 4 and having the requisite educational qualification is entitled to be considered for the above stated post. 17. In the result, the Government Orders impugned are quashed. The appointment of the respondents 3 and 4 in the impugned Government Orders, insofar as the community health Nursing is concerned is set aside. The matter is remitted to the first respondent for consideration on merits afresh. The first respondent is directed to reconsider the claim of the petitioner along with all other eligible candidates as on March 2007 and pass appropriate orders within a reasonable period of time preferably before the end of January 2010. This writ petition is ordered as above. Consequently, M.P.Nos. 1 and 2 of 2007 are closed. No costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. ra https://hcservices.ecourts.gov.in/hcservices/ To 1. The Director, Directorate of Medical Education, Kilpauk, Chennai.10. 2. The Health Secretary, Ministry of Health, Secretariate, Chennai.9. + 1 CC To Mr.P.Narayanamoorthy, Advocate SR NO.63331 WP No. 25065 of 2007 KS (CO) SS (22.1.2010) https://hcservices.ecourts.gov.in/hcservices/