IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 02.03.2011 Coram THE HONOURABLE MR.JUSTICE VINOD K SHARMA Writ Petition No.12043 of 2009 and M.P.Nos.1 to 3 of 2009 N.Krishnaveni .... Petitioner Vs. `1. Directorate of Medical and Rural Health Services rep. by its Director, P.Nandagopalasamy, Anna Salai, Chennai-6. 2. The State of Tamil Nadu rep. by its Secretary to Government, Health Department and Family Welfare Department, Fort St. George, Chennai-9. 3. The Director of Medical Sciences, Teynampet, Chennai-18. 4. The Tamil Nadu Nurses and Midwives Council, No.140, Santhome High Road, Mylapore, Chennai-4. .... Respondents Writ Petition has been filed under Article 226 of the Constitution of India praying to issue a Writ of Mandamus, directing the first respondent to issue advertisement for calling for applications for post of Staff Nurse in the State of Tamil Nadu and consequently, direct the respondent to issue call letter to the petitioner pursuant thereto for attending counselling for appointment to the Post of Staff Nurse. For Petitioner : Mr.Vineet Subramani For Respondents : Mr.R.Suresh, GA 1 to 3 For 4th respondent: No appearance https://hcservices.ecourts.gov.in/hcservices/ O R D E R The petitioner has approached this Court with a prayer for issuance of a writ in the nature of Mandamus, directing the 1st respondent to issue advertisement for calling for applications for post of Staff Nurse in the State of Tamil Nadu, and to direct the respondents to issue call letter to the petitioner, so as to enable the petitioner to compete for appointment to the post of Staff Nurse. 2. The petitioner passed X Standard from the Board of Secondary Education, Tamil Nadu in the year 1991 and thereafter +2 in the year 1992. The petitioner, thereafter joined the Nursing Course and was successful in getting a Diploma in Nursing. 3. It is the case of the petitioner, that the standard of education in the Government, as well as in the private institute is the same as the admission and study of course of nursing is regulated by the Indian Nursing Council Act, 1947. The petitioner after passing the diploma has himself registered, with the Tamil Nadu State Nurses Council as a Nurse/ Midwife. 4. It is the case of the petitioner, that the qualification of the petitioner is duly recognised by the Government of Tamil Nadu. The petitioner is aggrieved by the fact, that the respondents while filling up the post of Nurses all over the State, are only appointing the nurses, who graduated from the Government Institutions by completely shutting, the claim of other nurses, who had qualified from the private institutions duly recognised by the Government and the Nursing Council. 5. It is also the case of the petitioner that the fundamental right of the petitioner of equal opportunity for public appointment has been defeated, as no advertisement was issued so as to give chance to all the eligible nurses, to compete for the post, under the State Government. 6. In support of the prayer made, the learned Counsel for the petitioner vehemently contended, that the process followed by the Government in making appointment of nurses in State Service is arbitrary, and violates Articles 14, 16, 19, 21 and 309 of the Constitution of India. 7. The learned Counsel for the petitioner also contended that the process of selection, from and out of the nurses, who passed from Government Institutions, cannot be sustained, in view of the law laid down by the Honourable Supreme Court in Municipal Corporation of Greater Bombay v. Thukral Anjali Deokumar (1989) 2 SCC 249. In case, the Honourable Supreme Court, was pleased to hold that the institutional preference would be arbitrary, therefore, would be hit https://hcservices.ecourts.gov.in/hcservices/ by Article 14 of the Constitution. 8. Reliance is also placed, on the decision of the Honourable Supreme Court in V.N.Sunanda Reddy v. State of Andhra Pradesh (1995 Supp. (2) SCC 235) wherein the Honourable Supreme Court quashed the selection, which deviated from the selection of the candidates on merit. In the said case, the State of Andhra Pradesh sought to favour the Graduates of Tamil language, for the purpose of appointment. 9. The final contention of the learned Counsel for the petitioner was, that as per the Constitutional mandate for the appointment to the State Services, the sole criteria can only be merit and any rule or regulation, which deviate from this criteria cannot be sustained in law. 10. The Writ Petition is opposed by the learned Government Advocate, by placing reliance on the decision of Divisional Bench of this Court in M.Elumalai and Others vs. M.Bhuvaneswari and Others (2007) 3 MLJ 967, where in a similar prayer, for issuance of writ in the nature of Mandamus, to appoint the petitioner as staff nurse and latter for mandamus to consider the petitioner for appointment as staff nurse, on the ground, that appointment of nurses who studied in Government Nursing Colleges (Government Nurses in short) to exclusion of nurses who studied in private institution is violative of Articles 14, 16 and 21 of Constitution of India was rejected by holding as under : "10. The writ petitioners have come with a prayer for mandamus. The rules subject to Which the Government Nurses have been given training and absorbed as nurses have not been challenged. Of course, it was contended by Mr.R.N.Amarnath that executive instructions can never override the Madras Medical Subordinate Service Rules framed under Article 309. However, the Madras Medical Code and the provisions thereunder which have been extracted above which deal with the manner in which these trainees enter into a contract and are taken in as nurses have been in vogue for many decades. The history of public health institutions in this State is over a century old. At that time, the Government thought out a well laid plant to start their own training institutions for nurses. With a view to attract the best talent, these institutions provided incentives for women to get training and service bonds were also obtained from them so that the training is utilised in Government Hospitals. During their in house training, they were imbibed with a spirit of public service. After Independence and the Constitution, the trainee nurses were taken in on the basis of communal roster and merit was the criterion for admission. https://hcservices.ecourts.gov.in/hcservices/ 11.The entry into the category of nurses starts with the admission into a Government Training School. It is a composite scheme of recruitment, training and absorption exclusively for Government institutions. According to the State, if a person wants a posting in a Government Hospital, the entry point is an admission in the training institution run by the Government and there is no scope for any lateral entry. The candidates who succeed in the examination and are given training in Government institutions enter into an agreement to serve the Government for a minimum period of three years after completion of their training. Therefore, the Government provides these candidates rent-free quarters, free supply of electricity, paid stipend, which includes uniform allowance and therefore, public money is spent on them. The prospectus for admission also says 'nursing students who have successfully completed their training and obtained their diplomas will be eligible for appointment as nurses. The appointment cannot be guaranteed to all or any of the successful candidates. Recruitment will be made in accordance with the Tamil Nadu Medical Subordinate Service Rules. " Every year, 1795 candidates successfully come out of these Government institutions and there are more than enough candidates waiting for appointment in nurse posts. The Government is bound to protect these trainees and as observed in (1995)2 SCC 1, having spend public money on them, the absorption of these trainee students cannot be said to be unreasonable. 13.Rule 16 was also cited on behalf of the Private Nurses to show that it is not as if the State promises the appointment to all, and if that is so, then the Government cannot seek refuge under the provisions of the Tamil Nadu Medical Code and deny the private nurses the right to be appointed. This submission is also to be rejected. Rule 16 would come tot he aid of the Government if a mandamus is sought for by a Government nurse for a direction to appoint her. Then the Government can turn around and say that appointment was not guaranteed to all or any of the successful candidates in view of Rule 16 and therefore, all that they can expect is to be considered for appointment. When even the nurses who have been trained in the Government institutions and who have executed the bond to serve the Government for a period of three years would not be entitled to a mandamus in view of Rule 16, it is difficult to see how the private nurses who had failed in their attempt to secure admission by passing the Government entrance examination would be entitled to such a mandamus. Their right is much inferior to that of the Government nurses. https://hcservices.ecourts.gov.in/hcservices/ 14.A large expenditure is incurred by the Government is spelt out in the counter and the private nurses also do not deny the fact that the Government has incurred the expenditure. Of course, it was contended on behalf of the private nurses that out of the 1745 students, 645 students are given stipends, but tuition fees is charged; 100 students are not given stipends but the tuition fee is waived; but the rest of the 1000 students pay a nominal fees. But however,it is stated by the Government that the last category is no longer in vogue. It is also seen that the Government has not advertised the vacancies and called for applications. The vacancies and called for applications. The vacancies have been filled up by absorption. For 50 years, this practice has held the field. This Medical Code has been the basis for filing up the vacancies of nurses for so long. 21.The decision rendered in Secretary, State of Karnataka v. Umaadevi, (supra) case will not apply to the Government Nurses since their appointments are not ad hoc. It is in accordance with the provisions of the Madras Medical Code and this procedure has been in vogue for several decades and their appointment is also in accordance with the Madras Medical Subordinate Service Rules since they are all candidates who have undergone training in Government institutions, Equality cannot also be claimed between Government Nurses and Private Nurses since it is very apparent that they fall into two groups. Considerable money is spent on the Government Nurses for their training, for which they execute a bond undertaking to serve the Government for a period of three years and as and when their turn comes, in accordance with the roster and their registration, they are absorbed into Government service. They are all candidates who had appeared for the entrance examination conducted by the Government and come out successfully. On the other hand, the Private Nurses are those candidates who did not appear in the entrance examination or if they had appeared had failed and had pursued their studies in private institutions. The fact that the course content in the private institutions and the Government institutions is the same is hardly material. The rules provided that if a student fails after the second attempt, the training is terminated forthwith and therefore, all the benefits and consequences which accrue from the training cannot also be asserted as a matter of right by such failed students. Having failed in the entrance examination and having pursued their studies in private institutions, they cannot now say that they are entitled to the same treatments as the students who had passed the entrance examination and had pursued their course in https://hcservices.ecourts.gov.in/hcservices/ Government institutions. A reading of the bond executed by the Government Nurses also shows that they subject themselves to certain terms and conditions and the Private Nurses have no such liability. 23.It is open to to the Government to take a decision and in fact, the learned advocate General fairly acknowleged that this Code came into effect at a time when there were not many nursing institutions, at any rate, there were hardly any private institutions. Now where there is a clamour for admission to nursing courses, the Government will have to take into account the changes that have taken place in the last 100 years. We cannot direct the State to make an amendment in this regard. However, the State may consider making a provision which will ensure that the opportunity to be appointed as a Government Nurse is not foreclosed to students who have pursued their studies in private institutions, 'while safeguarding the position of Government Nurses. Many documents were also produced to show that the private institutions were all registered and recognised. 24.The selection process was not initiated. It is the categoric statement of the Government that there was no advertisement. It is also their case that these students who had been trained for Government service are still waiting in queue and therefore, the appointment would be given to those on whom public money has been spent. This course is not strictly akin to apprentices. According to the State, this is an integrated, composite course of education and it starts when he student passes the entrance examination. The judgment in Anant Madaan v. State of Haryana (supra), also clearly says that the two classes are different. Therefore, the finding that the Private Nurses are entitled to be treated as equal and therefore entitled to a mandamus cannot be accepted, especially since even those who are trained are not entitled to a mandamus for as a matter of right. 11. In this case, again the prayer, made by the petitioner is for issuance of a Writ in the nature of Mandamus, directing the respondents to issue an advertisement for the post of nurses/Midwives, and to consider the eligible persons, without challenging the rules and regulations. This is in spite of the observation by the Honourable Division Bench in para 25 of the judgment in the case of M.Elumalai and Others vs. M.Bhuvaneswari and Others (2007) 3 MLJ 967 (supra) which reads as under : "25. It is also relevant to note that some of the Private Nurses have now filed writ petitions challenging the https://hcservices.ecourts.gov.in/hcservices/ validity of the rules subject to which Government Nurses are appointed. In the present case, since only a mandamus was sought for, the counter filed by the Government did not address this issue and therefore, even while we were hearing the matter, we suggested to the counsel appearing for the Private Nurses that they may withdraw their writ petition with liberty to file a fresh one. But they did not want to do so. However, it is now stated that they have also filed a writ petition. All the contentions raised here can be raised by them in that writ petition. Any observation made in this judgment is only to underscore the position that a mandamus, as sought for, cannot be issued in these cases. But as regards the manner in which the two groups are entitled to be treated inter se and the questions whether the executive orders run contrary to the statutory rules or whether the executive orders only fill up gaps where the statutory rules are silent, and whether the words "including those appointed under a contract" refer to the bond executed by the Government Nurses, are, all matters which can be raised and dealt with in the said writ petition." 12. This Court is bound by the Division Bench judgment of this Court, in the case of M.Elumalai and Others vs. M.Bhuvaneswari and Others (2007) 3 MLJ 967. Consequently, the Writ Petition as framed is not competent, hence dismissed. No costs Consequently, connected Miscellaneous Petitions are also closed. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar tsi To `1. Mr.P.Nandagopalasamy, Director, Directorate of Medical and Rural Health Services, Anna Salai, Chennai-6. 2. The Secretary to Government, State of Tamil Nadu, Health Department and Family Welfare Department, Fort St. George, Chennai-9. https://hcservices.ecourts.gov.in/hcservices/ 3.The Director of Medical Sciences, Teynampet, Chennai-18. 4. The Tamil Nadu Nurses and Midwives Council, No.140, Santhome High Road, Mylapore, Chennai-4. 1 cc to Mr.Vineet Subramani, Advocate, Sr.No.16687 1 cc to Mr.S.Saravana Kumar, Advocate, Sr.No.15407 1 cc to Government Pleader, Sr.No.15198 W.P.No.12043 of 2009 BVR {CO} TP/1.4.2011. https://hcservices.ecourts.gov.in/hcservices/