IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH L.P.A. No. 204 of 2011 (O&M) Date of Decision: February 4, 2011 Smt. Dropdi Devi and others …Appellants Versus Miss Shashi Sharma and others …Respondents CORAM: HON’BLE MR. JUSTICE M.M. KUMAR HON’BLE MR. JUSTICE JASWANT SINGH Present: Mr. R.K. Malik, Senior Advocate, with Mr. Surya Partap, Advocate, for the appellants. 1. To be referred to the Reporters or not? Yes 2. Whether the Judgment should be reported in the Digest Yes M.M. KUMAR, J. 1. The instant appeal filed under Clause X of the Letters Patent is directed against judgment dated 13.12.2010 rendered by the learned Single Judge of this Court. While allowing the prayer made by respondent Nos. 1 to 15, learned Single Judge has held that they were entitled to be considered for promotion in pursuance of the qualifications laid down in the statutory rules known as ‘the Haryana Health Department Nursing Personnel and Lady House Keepers (Group C) Service Rules, 1998’ (for brevity, ‘the 1998 Rules’) which have been framed under proviso to Article 309 of the Constitution. The learned Single Judge has also set aside the order dated 25.9.2009 (P-5) passed by the respondent State of Haryana L.P.A. No. 204 of 2011 (O&M) and subsequent order dated 26.10.2009 (P-6) passed by the Director General, Health Services, Haryana. 2. According to the order passed by the State of Haryana it had been decided that promotion of eligible candidate to the vacant post of ‘Principal Tutor’ be made provisionally as per the new Draft Rules containing the proposed amendments. The consequential order dated 26.10.2009 has been passed promoting the Nurses working in the Public Health Department to the post of Principal Tutor in the pay scale of ` 9300-5400 on provisional basis. 3. The learned Single Judge has also observed that the Draft Rules framed in the year 2009 would not override the statutory 1998 Rules framed in exercise of power under proviso to Article 309 of the Constitution, especially when the vacancies of ‘Principal Tutor’ sought to be filled belonged to the year 1999. Accordingly, the Draft Rules of 2009 were to give way to the statutory 1998 Rules, which were prevalent at the time when vacancies have arisen in the year 1999. The learned Single Judge has also applied the principle of ‘old vacancy old rule’. The view of the learned Single Judge is discernible from the following para: “ The clear legal position that can be noticed is that 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 2 L.P.A. No. 204 of 2011 (O&M) 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.” 4. It is also pertinent to mention that as per Rule 9 of the 1998 Rules, appointment to the service could be made in case of Principal Tutor by promotion from amongst Sister Tutors. According to Appendix ‘B’, for appointment other than by direct recruitment to the post of Principal Tutor, the prescribed academic qualification and experience are – (i) B.Sc. (Hons.) Nursing or B.Sc. (Post Basic) Nursing or Diploma in Nursing Education and Administration from a recognised Institute/University; (ii) Five years experience as Sister Tutor; (iii) ‘A’ Division Nurses (with midwife training) registered with the Haryana Nurses Registration Council; and (iv) Hindi upto Matric Standard. The Sister Tutors, namely, petitioner-respondent Nos. 1 to 15 are eligible as they fulfill all the statutory qualification laid down in Rule 9 read with Appendix ‘B’ of the 1998 Rules. In that regard, the findings of the learned Single Judge read as under:- “ 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 3 L.P.A. No. 204 of 2011 (O&M) 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 held entitled even for consideration for promotion to the post of Principal Tutor. In view of the clear legal position, the submission that 4 L.P.A. No. 204 of 2011 (O&M) 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.” 5. Mr. R.K. Malik, learned Senior counsel for the appellants has argued that the draft rules framed on 29.9.2009 in pursuance of letter dated 16.3.2009 sent by the Indian Nursing Council, New Delhi (for brevity, 'the Council') to the respondent-State of Haryana are binding because the qualifications for various posts like Principal Tutor have to be prescribed by the Indian Nursing Council. According to Mr. Malik, the 1998 Rules framed under proviso to Article 309 of the Constitution would not govern the field. Learned counsel has maintained that there is a specific bar created by the Council to prescribe the qualification for the post of ‘Principal Tutor’. In that regard, reliance has been placed on Section 16 of the Indian Nursing Council Act, 1947 (for brevity, 'the Act'). 6. We have heard learned counsel for the appellants at length and perused the paper book with his able assistance. It would be profitable to first read Section 16 of the Act which empowers the Council to make regulations. The relevant extract of sub-section (1) of Section 16 of the Act would show that the Council could discharge any of the following functions:- “(a) the management of the property of the Council and the maintenance and audit of its accounts; (b) the manner in which elections referred to in sub- section (2) of section 5 and in clause (a) of sub- section (2) of section 8 shall be conducted; (c) the summoning and holding of the meetings of the 5 L.P.A. No. 204 of 2011 (O&M) Council, the times and places at which such meetings shall be held, the conduct of business thereat and the number of members necessary to constitute a quorum; (d) prescribing the functions of the Executive Committee, the summoning and holding of meetings thereof, the times and places at which such meetings shall be held, and the number of members necessary to constitute a quorum; (e) prescribing the powers and duties of the President and the Vice-President; (f) prescribing the tenure of office and the powers and duties of the Secretary and other officers and servants of the Council; (ff) prescribing the powers and duties of Inspectors; (g) prescribing the standard curricula for the training of nurses, midwives and health visitors, for training courses for teachers of nurses, midwives and health visitors, and for training in nursing administration; (h) prescribing the conditions for admission to courses of training as aforesaid; (i) prescribing the standards of examination and other requirements to be satisfied to secure for qualifications recognition under this Act; (j) any other matter which is to be or may be prescribed under this Act.” 7. A perusal of the aforesaid Section would show that the 6 L.P.A. No. 204 of 2011 (O&M) Council has been given the power to prescribe the standard curricula for the training of nurses, midwives and health visitors, for training courses for teachers of nurses, midwives and health visitors, and for training in nursing administration. According to clause (h), the Council can also prescribe the conditions for admission to courses of training as prescribed in clause (g) and also it could prescribe the standards of examination and other requirements to be satisfied to secure recognition under this Act. From the aforesaid provision, we are not able to read any power that the Nursing Council could prescribe qualifications for appointment either for direct recruitment or for promotion to the post of Principal Tutor or any other nursing staff and, therefore, it would not lie in the mouth of the appellants to claim that the Parliament has enacted the law by exercising the powers as per Entries 65 and 66 of the Union List of 7th Schedule of the Constitution and consequently the 1998 Rules framed by the State, are in conflict with the aforesaid provisions. Moreover, the Council itself has not been conferred with any power to prescribe any qualification. Reliance of Mr. Malik, on the judgment of Hon'ble the Supreme Court in the case of University of Delhi v. Raj Singh, 1994 (5) SLR 286 and a Division Bench judgment of this Court rendered in the case of Neeraja Malik v. State of Haryana, 1997(1) RSJ 246, would have no application and is thus distinguishable because in both the cases there was Central Legislation which was found to be conflict with State enacted law. 8. We have asked a pointed question to Mr. Malik as to the date of occurrence of vacancy. It has been stated that the vacancy 7 L.P.A. No. 204 of 2011 (O&M) of the post of Principal Tutor had arisen in the year 1999. If that be so, then any proposal or direction of the Council even if it is presumed that it has the power to prescribe the qualification, would not govern the qualification for a vacancy which has arisen in the year 1999. It is well settled that a vacancy which is to be filled up by promotion and has arisen prior to the amendment of the rules, has to be filled up in accordance with the old rules. The principle of 'old vacancy old rules' was laid down by Hon'ble the Supreme Court in the case of Y.V. Rangaiya v. State of Andhra Pradesh, AIR 1983 SC 852. Those who have been waiting for their right of consideration for promotion to the post of Principal Tutor and was fulfilled the qualification laid down by the 1998 rules would certainly entitled to be considered in accordance with the qualifications prevalent at the time of occurrence of vacancy. Their right to be considered for promotion cannot be snatched by subsequent amendment provided that before the date of the amendment they were eligible. It has been found by the learned Single Judge that they were fully eligible much prior to 2009 as they had the experience as well as the qualification prescribed by 1998 rules. Therefore, we do not find any exception legal or factual in the view taken by the learned Single Judge warranting interference in the appeal. There is no merit in the appeal warranting its admission, which is dismissed. However, we accept the prayer made by Mr. Malik that appellant No.1, who was promoted on 27.10.2009 on the basis of the qualification laid down by the Council in 2009, has retired on 31.3.2010. The financial benefits which have been taken by her shall not be withdrawn as per the ratio of the Full Bench 8 L.P.A. No. 204 of 2011 (O&M) judgment rendered in the case of Budh Ram Garg v. State of Haryana, 2009(3) SCT 333. However, the respondents shall be entitled to re-fix her salary as per the directions issued by the learned Single Judge but no recovery is to be effected from appellant No.1. (M.M. KUMAR) JUDGE (JASWANT SINGH) February 4, 2011 JUDGE ajay-I/PKapoor 9