1 W.P. 1162/1994 - ( J ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 1162 OF 1994 1. Maharashtra Rajya Zilla Parishads Arogya Seva Karmachari Sanchatana – through its District President Shri. Sudhakar Laxmanrao Chavan Age : Major, Occ. Service, R/o : N-11, B/34/2, HUDCO, New Aurangabad. 2. Smt. Nirmala W/o Madan Wable Age : Major, Occ. : Service, R/o : Public Health Centre, Adalgaon, Tq. Shrigonda, Dist. Ahmednagar. 3. Ms. Pushpa D/o Baliram Shinde Age : Major, Occ. Service (Auxilliary Nurse Mid-wife) R/o : Public Health Centre, Adalgaon, Sub Centre , Pedgaon, Tq. Shrigonda, Dist. Ahmednagar. 4. Smt. Kusum W/o Madan Tiwary Age : Major, Occ. Service, (Auxilliary Nurse Mid-wife) R/o : C/o District Health Office Zilla Parishad, Jalgaon. 2 W.P. 1162/1994 - ( J ) 5. Smt. Vasudha W/o Vasantrao Apte Age : Major, Occ. Service, (Auxilliary Nurse Mid-wife) R/o : C/o : P.H.C. Pimpalgaon- Hareshwar, Tq. Pachora, Dist. Jalgaon. 6. Smt. Kanta D/o Yadavrao Dhabadge Age : Major, Occ. Service R/o : P.H.C., Sillod Sub-centre, Pimpalgaonpeth, Tq. Sillod, Dist. Aurangabad. .... PETITIONERS VERSUS 1. The State of Maharashtra Through its Secretary, Health Services, Mantralaya, Bombay – 32. 2. The Secretary Rural Development Department Mantralaya, Bombay – 32. 3. The Director of Health Services M.S. St. George Hospital College Compound, Dental College Building, IV Floor, Bombay – 1. 4. The Zilla Parishad Through its Chief Executive Officer, 3 W.P. 1162/1994 - ( J ) Aurangabad. 5. The Zilla Parishad Through its Chief Executive Officer, Jalgaon. 6. The Zilla Parishad Through its Chief Executive Officer, Ahmednagar. 7. Maharashtra Nursing Council E.S.I.S.Hospital Compound, Nurses Hostel, 2nd Floor, Laibahadur Shastri Marg, Mulund (West), Bombay. 8. Indian Nursing Council Combined Councils Building Kotla Road, Templelane New Delhi. ..... RESPONDENTS -------------------------------------------------------------------------------------------------------- Mr. S.B.Talekar , Advocate for the petitioners. Mr. N.B.Patil, Assistant Govt. Pleader for State. -------------------------------------------------------------------------------------------------------- CORAM : B.R. GAVAI AND S.V. GANGAPURWALA, JJ. DATE : 21/07/2010 4 W.P. 1162/1994 - ( J ) JUDGMENT : [ PER - S.V. GANGAPURWALA, J. ] 1. The present petition is directed against the decision of the Govt. restricting the promotional training course of 6 months for auxiliary nurses mid wives only to those who have passed S.S.C. and possess 5 years experience in Zilla Parishad service or in Govt. service and thereby restricting the promotions of auxiliary nurse mid wife to the post of Health Assistant ( female ) only to those who have passed S.S.C. The petitioners interalia pray to quash and set aside the letter/Circular dated 7/2/1994. The petitioners also seeks direction against the respondents to grant promotion to non S.S.C. auxiliary nurses mid wives to the post of lady health Visitor/Health Assistant ( female ), according to seniority-cum- fitness with retrospective effect along with all consequential benefits. 2. The members of the petitioner no. 1 - Union and petitioner nos. 2 to 6 are working as auxiliary mid wives, who have not passed S.S.C. According to the petitioners, the minimum educational qualification for the course of mid wife or auxiliary nurse mid wife prior to 1981was that the candidate must have passed 7th standard . The same was raised to S.S.C. in October, 1981. Prior to that, thousands of candidates who had passed 7th standard and completed the course of auxiliary nurse mid wife, were employed in Zilla Parishad in Maharashtra State. Vide letter/Circular dated 5 W.P. 1162/1994 - ( J ) 7/2/1994 issued by the Director, health services, it was clarified that as per the decision of the Indian Nursing Council, only those candidates who have passed S.S.C., would be considered for ANM and not to depute auxiliary mid wife having less than S.S.C. qualification for training. 3. (i) Mr. Talekar, the learned counsel for the petitioner submitted that the petitioners, who are appointed prior to 1980, can not be governed by any such directions which are issued subsequently and which are detrimental to their interest. The terms of employment can not be changed to their detriment. (ii). The rules i.e. Maharashtra Zilla Parishad District Services ( Recruitment ) Rules, 1967 ( For short, ' Rules of 1967 ' ) lays down that 50 % of the post of Health Assistant ( female ) are to be filled in from Auxiliary Nurse mid wife, who have not passed S.S.C. and when the rules do not provide for such a requirement, the respondents can not insist for the same. (iii) No Regulation has been passed by the Indian Nursing Council changing the qualifications. 4. Mr. Alok Sharma, the Assistant Solicitor General and Mr. P.R.Patil, the learned counsel for respondent – Zilla Parishad, Jalgaon 6 W.P. 1162/1994 - ( J ) submitted that the Indian Nursing Council can provide for the stipulation regarding the academic qualifications. 5. According to them, the letter has been issued by the Ministry of Health and Family Welfare addressed to the Director of Health Services confirming that Auxiliary Nurse Mid-wife with 10th pass qualification is eligible for six months promotional training. 6. It is not disputed that prior to 1982, there was no such condition which laid down that only those Auxiliary Nurse mid-wives, who possess S.S.C. Qualification can only be sent for promotional training. According to the respondents, the regulation is passed to that effect and it would be within the competency of the Union to pass such a regulation. 7. Upon enquiry being made by us, the respondents have not been in a position to place on record any such regulation. The service conditions are governed by the rules under the Maharashtra Zilla Parishad District Services ( Recruitment ) Rules, 1967. The relevant rule reads as under : “ (xiv) Lady Health Visitor : 1. Appointment to the post of Lady Health worker shall be made by promotion of a 7 W.P. 1162/1994 - ( J ) suitable person, on the basis of seniority subject to fitness from amongst the Auxiliary Nurse Midwives who - ( a ) have passed the examinations held after the six months Promotional Training Course; and (b) are registered with the Maharashtra Nursing Council or are eligible for such registration ; Provided that, the Auxiliary Nurses Midwives who have not passed the Secondary School Certificate Examination shall be eligible for promotion and 50 per cent of the vacancies available for promotion shall be filled in by such midwives ” . 8. The rules specifically lay down that 50 % of the promotions to the post of Lady Health Visitor would be from Auxiliary Nurse Mid-Wife, who have not passed S.S.C. When the rules are governing the field and there are no regulations passed, in such circumstances, the respondents can not issue any directions contrary to the said rules. More over, the service conditions can not be changed to the detriment of the employees, who have already been recruited. In the light of the above, we hold that the impugned communication dated 7/2/1994 is bad in law and we direct that 8 W.P. 1162/1994 - ( J ) the petitioners are entitled for the promotional training of Auxiliary Nurse mid-wives. 9. Many of the petitioners must have retired by now. We, therefore, direct that the petitioners be given the deemed date on par with the other employees, who were granted promotion to the post of Lady Health Visitor, who had passed S.S.C. examination. 10. Rule is made absolute on above terms. However, there shall be no order as to costs. [ S.V. GANGAPURWALA ] [ B.R. GAVAI ] JUDGE JUDGE knp/WP 1162.94