CIVIL WRIT PETITION NO.17065 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CIVIL WRIT PETITION NO.17065 of 2009 DATE OF DECISION: December 13, 2010 Shashi Sharma & others .....Petitioners VERSUS State of Haryana and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. Rajbir Sehrawat, Advocate for the petitioners. Mr. Harish Rathee, Sr.DAG, Haryana, for the State. Mr. R.K. Malik, Sr. Advocate, with Mr. Kohal Sharma, Advocate, for respondent Nos.3 to 5. **** RANJIT SINGH, J. All the petitioners are working as Sister Tutor and have approached this Court through the present writ petition asking for writ of certiorari for quashing order dated 29.9.2009 (Annexure P- 5) and the consequent promotion order dated 27.10.2009 (Annexure P-6). The petitioners also pray for mandamus for their promotion to CIVIL WRIT PETITION NO.17065 of 2009 -2- the post of Principal Tutor for which they are eligible and entitled to as per the existing rules. The primary grievance of the petitioners appear to be that proposed/Drafts Rules cannot be taken into consideration to either consider their cases for promotion or to deny the said promotions to them. The petitioners would urge that they are senior most eligible Sister Tutors and their next promotion is to the rank of Principal Tutor. Some Sister Tutors have already been promoted and 5 posts of Principal Tutor are lying vacant. The petitioners, accordingly, made representations for their promotion to the post of Principal Tutor. No action, however, was taken by respondent Nos.1 & 2 on the said representations. Later, the petitioners learnt that their case for promotion is not being considered on account of the influence being exercised by the members of another cadre of Public Health Nurses. The petitioners would point out that under the existing rules, Public Health Nurses are not eligible for promotion to the post of Principal Tutor, as they do not constitute the feeder cadre for promotion. It is pleaded that despite the existing vacancies, the cases of the petitioners have not been considered for promotion. The petitioners have disclosed that official respondents are considering to amend Rules to make Public Health Nurses eligible for promotion to the post of Principal Tutor. This amendment, however, is yet to take place, but the Draft Rules proposing amendment have been taken into account for making promotion to the post of Principal Tutor. The petitioners have, CIVIL WRIT PETITION NO.17065 of 2009 -3- accordingly, filed this writ petition to impugn the said action of the official respondents. Reply is filed by respondent Nos. 1 & 2 as well as by private respondents. It is stated that the petitioners are junior to the Public Health Nurses working in the Health Department. It is, accordingly, stated that the petitioners are not entitled to promotion to the post of Principal Tutor in terms of Draft Rules, 2009 (emphasis added). Prayer, thus, is made to dismiss the writ petition. Private respondents, however, have taken a slightly different stand and would urge that under Indian Nursing Council Act, 1947, Indian Nursing Council has power to maintain standard of various Nursing Institutions. Indian Nursing Council also prescribes the qualifications of the teachers of various courses. The Council, accordingly, has directed the Government of Haryana to provide following qualification for the post of Principal for GNM Programme:- “M.Sc. Nursing with 3 years of teaching experience or B.Sc. Nursing(Basic)/Post Basic with 5 years of teaching experience.” In the reply, it is stated that Indian Nursing Council has issued directions that if the teachers with the above qualification were not appointed then the Council shall withdraw the affiliation. The copy of this letter issued by the Council is annexed with the reply as Annexure R-3/1. In view of the respective stands taken by the parties, the first question that would require consideration is whether the proposed or Draft Rules can be taken into consideration for CIVIL WRIT PETITION NO.17065 of 2009 -4- regulating the promotions. Though an attempt was made by the counsel representing the respondents to place reliance on the Draft Rules in the background that these have been framed by Nursing Council of India and thus, would have a binding force, yet the counsel appearing for the respondents could not dispute the legal position that Draft Rules cannot regulate promotion unless the Rules earlier applicable are repealed or replaced. In fact, there is not much scope of debate in this regard in view of the law laid down by the Hon'ble Supreme Court in Union of India Versus V. Ramakrishnan and others, 2005(4) RSJ 757. This precise question arose before the Hon'ble Supreme Court in this case. The Court has ruled that valid Rules made under proviso appended to Article 309 of the Constitution of India operates so long the said rules were not repealed and replaced. The Court has also held that the Draft Rules could not form the basis for grant of promotion when the Rules to the contrary are holding the field. Where then is left any scope of any further arguments. The action of the State in relying on Draft Rules on any consideration whatsoever, is thus fully unjustified in law. The reply filed by the State would clearly reveal that right of the petitioners to the post of Principal Tutor is denied in terms of the Draft Rules 2009. The prayer for dismissing the writ petition indeed is made on this count. This aspect is further clarified while filing reply to para 3 of the writ petition where this position is reiterated by asserting that the Health Department in Haryana is presently following Draft Rules, 2009. Academic qualifications in the CIVIL WRIT PETITION NO.17065 of 2009 -5- Draft Rules are as follows:- “i) M.Sc. Nursing or B.Sc. (Basic/Post Basic) from a recognized Institute/University. ii) M.Sc. Nursing with three years of teaching experience or B.Sc. Nursing (Basic/Post Basic) with five year of teaching experience as Sister Tutor/PHN. iii) Registered with Haryana Nurses Registration council. iv) Hindi/Sanskrit upto Matric standard.” It is further stated that as such, 1998 Rules have no application to the Health Department. Thus, stand of the State is clearly contrary to the legal position as would emerge from V. Ramakrishnan's case(supra) and therefore, need to be rejected. The next submission made by both the counsel appearing for the respondents is that Indian Nursing Council is the governing body and has a function to prescribe qualification of the teachers for various courses. Submission is that once the Indian Nursing Council has directed the State to prescribe certain Rules as a condition, the State is bound to obey and irrespective of amendment of these Rules, the directions of the Indian Nursing Council has to prevail and not the rule position. Mr. Malik appearing for private respondents in this regard would seek support from the case of Neeraja Malik Versus State of Haryana, 1997 (1) RSJ 246. The issue in this case was relating to qualification required of a person to be appointed to the CIVIL WRIT PETITION NO.17065 of 2009 -6- teaching staff of the University and Institution affiliated to it. It is observed that once the University Grants Commission (U.G.C.) has taken a decision to relax the condition of passing of eligibility test for the teachers working prior to the enforcement of 1991 Rules and had circulated the same, the Universities are bound to implement the same. The right of the U.G.C. To make regulations prescribing qualification for recruitment is recognized in this case and accordingly, it is observed that U.G.C. has power to relax qualification. The ratio of law in this case may not have relevance to the present case. There was no issue before the Division Bench in regard to ignoring the Rules framed by the Government and to rely upon what is being provided by University Grants Commission. Simple issue is relating to relaxation granted by the U.G.C. It was a concession, which was made and the State was declining the same on the ground that there is no provision made in the Rules. The case before the Division Bench was filed by a person for seeking relaxation. Here the Indian Nursing Council is requiring qualifications to be prescribed. Those qualifications are yet to be prescribed in the Rules. Requiring relaxation of some rule and asking Government to frame rule prescribing qualifications would have to be viewed differently. Aim of relaxation would be to make some one eligible in addition, whereas requiring rule to be followed which is yet to be made would lead to make a person ineligible. The ratio laid down in this law as such can not be applied in the present case. The clear legal position that can be noticed is that CIVIL WRIT PETITION NO.17065 of 2009 -7- the earlier Rules will govern the field and not the Draft Rules. The legal position further would be that any vacancy, which would arise on a particular date, has to be filled up in accordance with law that was available at the time of the vacancy becoming available. If any amendment is made on account of requirement by the Indian Nursing Council and as such, amendment is incorporated in the Rules, they would govern to fill up the posts, which have arisen subsequent to the amendment and would not be applicable for filling up the vacancies, which were existing prior to such amendment. Counsel for the petitioners is justified in making reliance on the case of Jagar singh Versus State of Haryana, 2002 (4) SCT 104 in this regard. The legal position as enunciated in this case is that the vacancies, which occurred prior to the amendment, would continue to be governed by the old rules and not by the amended rules. The submission made by counsel for the petitioners that even the instructions issued by the Nursing Council would not have any major effect, has also got some force. Counsel for the petitioners has drawn my attention to Rule 9 of Haryana Health Department Nursing Personnel and Lady House Keepers (Group C) Service Rules, 1998(for short '1998 Rules'). The mode of recruitment as prescribed in this Rule is as under:- “Rule 9: Mode of Recruitment:- (i) Recruitment to the service shall be made;- (iii) In case of Principal Tutor:- (a) By promotion from amongst Sister Tutors; or (b) By transfer or deputation of an official already in the service of any State CIVIL WRIT PETITION NO.17065 of 2009 -8- Government or the Government of India Appendix B Sr. No. Designation of Academic qualification and Post experience, if any for appointment other than by Direct recruitment -------------------------------------------------------------------------------------------- 3. Principal Tutor (i) B.Sc. (Hons.) Nursing or B.Sc.(Post Basic) Nursing OR Diploma in Nursing Education and Administration from a recognized Institute/University (ii) Five years experience as Sister Tutor (iii) 'A' Division Nurses (with midwife training) registered with the Haryana Nurses Registration Council (iv) Hindi upto Matric Standad” As per the said Rule, Sister Tutors are only eligible for the post of Principal Tutors. Public Health Nurses are not eligible for even promotion to the post of Principal Tutor. The qualification prescribed for the post of Principal Tutor as B.Sc. (Hons.) Nursing or B.Sc. (Post Basic) Nursing even Diploma in Nursing Education and Administration from a recognized Institution/University is one of the prescribed qualification coupled with 5 years experience as Sister Tutor. Counsel for the petitioners points out that the only amendment which has been made in the Draft rules is that Public Health Nurses are also held entitled to recruitment for the post of Principal Tutor. The change in qualification is to provide for M.Sc. qualification in addition to the degrees, which are already prescribed in the Rule as essential qualification for promotion to the post of CIVIL WRIT PETITION NO.17065 of 2009 -9- Principal Tutor. In this background, counsel is justified in submitting that the petitioners would still remain eligible for consideration for promotion even if changed rules are to be taken into consideration. The submission made by Mr. Malik that none of the petitioner is eligible, can also not be accepted in view of clear and categoric averment made by the petitioners in regard to their eligibility in para 2 of the petition. The petitioners have averred that they are working as Sister Tutors and all have more than 5 years service experience as Sister Tutor. It is also stated that the petitioners No.1, 2, 3, 5, 6, 8 & 12 are having qualification of Diploma in Nursing Education and Administration (DNEA), whereas petitioner No.11 is having qualification of DNEA as well as B.Sc (Post Basic) Nursing. Petitioner Nos.4, 7, 9, 10, 13, 14 & 15 are having qualification of B.Sc. Course (Post basic) Nursing. While replying these averments, State has clearly stated that the contents of para 2 of the writ petition are not disputed. The only ground to decline the relief to the petitioners is that they are junior to the Public Health Nurses working in the Health Department and therefore, are not entitled to the post of Principal Tutor in terms of Draft Rules, 2009. The seniority alone is being taken into consideration denying the promotion to the petitioners. Mr. Rathee, in response to the query of the Court, has clearly stated that so far no joint seniority of the Sister Tutors and the Public Health Nurses has been framed. To say that the petitioners are juniors to the Public Health Nurses, thus, cannot be accepted. In any case unless the amendment in the Rules is made, Public Health Nurses cannot be CIVIL WRIT PETITION NO.17065 of 2009 -10- held entitled even for consideration for promotion to the post of Principal Tutor. In view of the clear legal position, the submission that the instructions issued by the Nursing Council has to prevail and the State is bound to obey the same, would not impress me and is rejected. The writ petition is, accordingly, allowed. The impugned orders Annexures P-5 & P-6 are hereby quashed. Respondents are directed to consider the claim of the petitioners for promotion to the post of Principal Tutor from the date they are eligible and from the date the posts have fallen vacant in accordance with their seniority. December 13,2010 ( RANJIT SINGH ) monika JUDGE