IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 19.10.2010 CORAM: THE HONOURABLE MR.JUSTICE ELIPE DHARMARAO AND THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN Writ Appeals No.314 and 315 of 2007 W.A.No.314 of 2007: Dr.R.Lakshmi ... Appellant/ Petitioner Vs. 1.State of Tamilnadu, rep.by Secretary to Government, Health & Family Welfare Department, Fort St.George, Chennai-600009. 2.Director of Medical Education, Chepauk, Chennai-600005. 3.Mrs.S.Manoranjitham, Lecturer in Nursing, College of Nursing, Madras Medical College, Chennai-600003. 4.Mrs.P.Sarojini, Lecturer in Nursing, College of Nursing, Madras Medical College, Chennai-600003. 5.The President, Indian Nursing Council, Combined Council Building, Kotla Road, Temple Lane, New Delhi-110002. ... Respondents/ Respondents https://hcservices.ecourts.gov.in/hcservices/ W.A.No.315 of 2007: Dr.R.Lakshmi ... Appellant/ Petitioner Vs. 1.State of Tamilnadu, rep.by Secretary to Government, Health and Family Welfare Department, Fort St.George, Chennai-600009. 2.Director of Medical Education, Chepauk, Chepauk-600005. 3.The Dean, Madras Medical College, Chennai-3. ... Respondents/ respondents Writ Appeals preferred under clause 15 of the Letters Patent, as against the common order dated 7.2.2007 respectively made in W.P.Nos.23560 and 28662 of 2006 by a learned single Judge of this Court. W.P.No.23560 of 2006:- Writ Petition filed under Article 226 of the Constitution of India praying for issuance of writ of mandamus directing the respondents 1 and 2 to consider and promote only such of those Lecturers to the post of Readers in the College of Nursing with the qualification prescribed by the Indian Nursing Council a published in the Regulation for Establishing College of Nursing (B.Sc.Nursing) in letter dated 6.12.2005. W.P.NO.28662 of 2006:- Writ Petition filed under Article 226 of the Constitution of India praying for issuance of writ of certiorari Calling for the proceedings of the third respondent made in Ref.No.11714/E1/4/06 dated 22.08.2006 and quash the same. For appellant in: Mr.R.Muthukumaraswamy, both the W.As. : Sr.counsel for Mr.A.Jenasenan https://hcservices.ecourts.gov.in/hcservices/ For R.1 & R.2 in WA.314/2007 & for all the : Mr.K.Balasubramanian, respondents in : Spl.G.P. WA.315/2007 For R.4 in : Mr.R.Muthukannu WA.314/2007 For R.5 in WA.315/2007 : Mr.M.T.Arunan, ACGSC COMMON JUDGMENT ELIPE DHARMARAO, J. Aggrieved against the dismissal of her claims, by a learned single Judge of this Court, for a direction to the Government of Tamil Nadu and the Director of Medical Education to promote only the Lecturers having qualifications prescribed by the Indian Nursing Council to the post of Readers and her challenge to the order of transfer, the writ petitioner has come forward to prefer these two appeals. 2. From the materials placed on record, it is seen that the appellant, after completing her Diploma in Nursing, has joined as Nurse on 9.3.1981. In the year 1986, she was permitted to undergo B.Sc. Nursing as a service candidate, which she completed from the College of Nursing, Madras Medical College in the year 1989. In the year 1992, she was permitted by the Government to undergo P.G. Degree programme in Nursing in the Christian Medical College, Vellore since the P.G.degree in Nursing was not available in the Madras Government College and accordingly, the appellant completed her M.Sc. Nursing in 1994. Thereafter, according to the appellant, she was posted as a Nurse in the Government General Hospital, Chennai-3 with instruction to utilize her services in the College of Nursing, Madras Medical College for teaching and accordingly, she started teaching in the College of Nursing, Madras Medical College. 3. It is the case of the appellant in the affidavit filed by her in support of the writ petitions filed by her, that after completion of her M.Sc.Nursing, she was inducted into teaching in the College of Nursing, Madras Medical College and in the Adhoc https://hcservices.ecourts.gov.in/hcservices/ Rules framed by the Government for various posts in the College of Nursing viz. Readers, Lecturers etc. consistent with the Regulations framed by the Indian Nursing Council, which stipulates that the post of Lecturer was to be filled up by a person possessing the Master's Degree in Nursing with three years experience. But, the post of Nurse was not a feeder category post to the post of Lecturer prior to 2000. Thereafter, the Government issued an order in G.O.Ms.No.192, dated 16.6.2000, amending the Adhoc Rules relating to the post of Lecturer and including the post of Nurse as a feeder category post to the post of Lecturer, but in these amended Rules, no teaching experience was included by the official respondents, which according to the appellant is only with a view to help respondents 3 and 4 and a panel was prepared for the year 2000-2001 and the respondents 3 and 4, who did not possess sufficient teaching experience, were promoted. Ultimately, in the year 2004, the appellant was promoted as Lecturer, which, according to her must date back to the year 2001- 2002. 4. The contention urged on the part of the appellant is that when the Nursing Council of India has prescribed certain qualification for a post, the State must have followed the same and Adhoc Rules must have been framed strictly consistent with the Regulations framed by the Indian Nursing Council. It is also the case of the appellant that the official respondents drew a panel for the year 2000-2001 for promotion to the post of Lecturer in which category there were four vacancies and although the appellant had longer teaching experience, the respondents 3 and 4 were included in the said panel for the year 2000-2001 for the post of Lecturer and were given promotion, in spite of the fact that they do not posses sufficient teaching experience as prescribed by the Indian Nursing Council. The further case of the appellant is that she had been agitating for her promotion by making number of representations and ultimately in 2004, the official respondents issued orders directing the inclusion of her name in the panel for the year 2001-2002 and she was accordingly promoted as a Lecturer, which must obviously date back to the year 2001-2002. 5. The appellant further stated that the next avenue of promotion is the post of Reader in Nursing and as per the Regulations framed by the Indian Nursing Council, which existed prior to December 2005, the qualification prescribed for promotion to the post of Reader is that person must have a Master's Degree in Nursing with teaching experience after M.Sc.Nursing in https://hcservices.ecourts.gov.in/hcservices/ collegiate programme and the Adhoc Rules framed by the State Government also provided for a Master's Degree in Nursing with five years experience, out of which three years should be in teaching; that in the year 2005, the Indian Nursing Council has issued amended Regulations as per which the Post of Reader is to be held by a person having a Master's Degree in Nursing with ten years experience after M.Sc. Nursing in a college of Nursing and it is only if a candidate is not available with such experience of five years of experience in a College of Nursing with an aggregate of ten years teaching experience can be considered and the Regulations also provide for a person having independently published work of high standard or a doctorate degree or M.Phil would be desirable. According to the appellant, the Adhoc Rules framed by the State Government for the post of Reader have not been amended consistent with the Regulations of the Indian Nursing Council and the Adhoc Rules framed by the State Government continued to provide only for M.Sc. Degree in Nursing with five years experience in Nursing out of which three years shall be in teaching as a Lecturer in Nursing or its equivalent in the University Nursing students in a College of Nursing. The appellant further contended that she is the only person who is fully qualified as per the Regulations framed by the Indian Nursing Council for promotion to the post of Reader with ten years experience in M.Sc. Nursing in a College of Nursing and the official respondents are reckoning the qualification prescribed by the Adhoc Rules to be applicable for promotion to the post of Reader and are actively considering the claims of respondents 3 and 4, who do not possess the experience qualifications prescribed by the Nursing Council. On such grounds, she has filed W.P.No.23560 of 2006, praying for a Writ of Mandamus to direct the respondents 1 and 2 to consider and promote only such of those Lecturers to the post of Readers in the College of Nursing with the qualification prescribed by the Indian Nursing Council as published in the Regulation for Establishing College of Nursing (B.Sc. Nursing) in letter dated 6.12.2005. 6. This claim of the appellant/petitioner was stiffly opposed by not only the official respondents, but also by the individual respondents 3 and 4, by filing separate counters. The consistent stand of the State Government and the respondents 3 and 4 is that they are fully qualified to hold the post of Reader and only taking into consideration their qualifications and experience, they were promoted to the cadre of Reader. It has been specifically contended on the part of the State Government that as on the date of promotion of respondents 3 and 4 as Lecturer, the https://hcservices.ecourts.gov.in/hcservices/ petitioner was only a Selection Grade Nurse, deputed temporarily to the College of Nursing and while issuing the deputation orders, it has been explicitly stated that the individuals deputed to College of Nursing should not be eligible to claim of right over others who were senior to them for promotion etc. and as this deputation was only a stop-gap arrangement, the appellant/petitioner has no right whatsoever to claim the advance preference in this regard. The action of the State Government has also been justified by the Indian Nursing Council. 7. Along with the above said writ petition, the petitioner/appellant has also filed M.P.No.1 of 2006 seeking an order of interim injunction restraining the respondents from considering any person or promotion any person to the post of Reader, except a person, who satisfies the requirement of the qualification and experience as laid down by the Indian Nursing Council dated 6.12.2005, wherein an order of interim injunction was granted by a learned single Judge by the order dated 26.7.2006. From the materials it is seen that the copy of the said order was communicated to the authorities on 2.8.2006, but since the official respondents issued promotion orders to respondent No.3 , the appellant, through her counsel issued anotice stating that the said action of theirs is in violation of the court's order and after receipt of the contempt notice, the official respondents have passed the trnasfer order on 22.8.2006 transferring the appellant from Madras Medical College to the College of Nursing, Madurai Medical College and directed to relieve her on the afternoon of 23.8.2006 and consequent upon the dismissal of W.P.No.28662 of 2006 filed by the petitioner/appellant challenging her order of transfer, on 7.2.2007 by the learned single Judge, the appellant preferred these two appeals and since no interim order was granted, she joined at Madurai Medical College on 15.3.2007. While so, a show cause notice was issued by the Director of Medical Education to the appellant on 21.8.2007, under Rule 17(a) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules on the charge that she failed tojoin duty from 24.8.2006 to 14.3.2007, which is in violation of Rule 20 of the Tamil Nadu Government Servants' Conduct Rules and on receipt of the said show caue notice, the appellant submitted a reply stating that since she had filed a writ petition challenging the order of transfer and status-quo having been ordered on 29.8.2006, she awaited further orders to be passed in the writ petition and the writ petition having been dismised on 7.2.2007 and in the writ appeals no interi order having been passed, she immediately joined the transferred place. https://hcservices.ecourts.gov.in/hcservices/ But, not satisfied with the said explanation, the appellant was imposed with a punishment of censure by the order dated 30.10.2007, which was challenged by the appellant/petitioner before this Court in W.P.No.1994 of 2008. A learned single Judge of this Court, assessing all the pros and cons of the issue, by the order dated 26.6.2008, has allowed the said writ petition, quashing the order of punishment of censure imposed on the appellant/petitioner. It is also seen from the records that by the proceedings dated 8.7.2008, the Director of Medical Education has promoted five Lecturer in Nursing to the cadre of Reader in Nursing, temporarily, by relaxing the rule relating to teaching experience qualification in teaching for the year 2008-2009 in Tamil Nadu Medical Services with effect from their taking charge of the post. This does not include the name of the appellant/petitioner. 8. According to the Regulations framed by the Indian Nursing Council, which existed prior to December 2005, the qualifications prescribed for promotion to the post of Reader is that the person must have a Master's Degree in Nursing with teaching experience after M.Sc. Nursing in Collegiate programme. The Adhoc Rules framed by the State Government also provided for a Master's Degree in Nursing with five years experience, out of which three years should be in teaching. But, in the year 2005, the Indian Nursing Council has issued amended Regulations, as per which the post of Reader is to be held by a person having a Master's Degre in Nursing with ten years experience after M.Sc. Nursing in a College of Nursing and if a suitable candiate is not available, a candidate with five years of experience in a College of Nursing with an aggregate of ten years teaching experience can be considered. But, the Adhoc Rules framed by the State Government remained as earlier, without amending, in tune with the Regulations of the Indian Nursing Council. Therefore, when according to the Regulations of the Indian Nursing Council, after amendment in the year 2005, the qualification for the post of Reader is a Master's Degree in Nursing with ten years experience after M.Sc. Nursing in a College of Nursing, as per the Adhoc Rules of the State Government, the qualification for the post of Reader is a Master's Degree in Nursing with five years experience, out of which three years should be in teaching. 9. The urge of the appellant is that had the Regulations framed by the Indian Nursing Council been strictly complied with by the State Government by amending the Adhoc Rules, she being the only candidate falling within that category, she would have got https://hcservices.ecourts.gov.in/hcservices/ promotion ahead of respondents 3 and 4, who, according to her does not fall within the stipulations of the Indian Council of Nursing. In these circumstances, the question that falls for consideration is whether the State Government is duty bound to amend the Adhoc Rules, in tune with the Regulations framed by the Indian Council of Nursing. 10. The role of the Indian Nursing Council, as prescribed in the Indian Nursing Council Act, 1947, is to regulate the nursing profession in the whole of India and to set uniform standards in the matter of nursing training. The State Government in their counter affidavit have stated that it is not mandatory for them to make amendments to the Rules framed by the Government prescribing the qualification as and when the Indian Nursing Council modifies its regulations. Education, including technical education, medical education, universities etc. is in Entry No.25 of List III-Concurrent List of the Seventh Schedule of the Constitution of India. It seems, because of this reason alone, the State Government has come forward with the reply that it is not mandatory for them to make amendments to the Rules framed by the Government prescribing the qualification as and when the Indian Nursing Council modifies its regulations and there is no specific denial of this aspect by the Indian Nursing Council in their counter affidavit. In fact, it is not even the case of the appellant also that the State Government cannot frame such Adhoc Rules. All that has been insisted on the part of the appellant is that the State Government should have adopted the Regulations framed by the Indian Nursing Council in its full form. In the considered opinion of this Court, insofar as the Adhoc Rules framed by the State Government, in exercise of its powers conferred under the Constitution in the field of education, are also towards maintaining the high standards required in the field with no conflict with the Regulations framed by the Indian Nursing Council, the same can very well rule the roost in the State. The Indian Nursing Council's Regulation, prescribing ten years teaching experience after M.Sc. Nursing in a College of Nursing for the post of Reader has not been followed by the State Government and the State Government, in its wisdom, thought it suffice if the candidate possesses M.Sc. Nursing and has experience of not less than five years in the field of Nursing out of which three years shall be in teaching as Lecturer in Nursing or its equivalent for the University Nursing Students in a College of Nursing and must have registered as a Nurse and Midwife under the Tamil Nadu Nurses and Midwives Council, which cannot be find https://hcservices.ecourts.gov.in/hcservices/ fault with. 11. The appellant has built up her case on the premise that she being a faculty with Ph.D.qualification, she should have been given preference over the respondents 3 and 4. From the materials placed on record it is seen that the respondents 3 and 4 do possess the qualification of M.Sc. Nursing and in fact the third respondent is having 15 years of teaching experience and also worked as Acting Principal for sometimes and the fourth respondent possess a total 21 ½ years of teaching experience. Possessing qualification more than what is required cannot always be a ground to seek accelerated promotion, when there are senior candidates with required qualification. To claim teaching experience, the appellant has placed much reliance on the aspect that after her completion of M.Sc. Nursing, she was posted to Government General Hospital, Chennai with the instruction to the authorities to utilize her services in the College of Nursing for the purpose of teaching on deputation basis. But, it is to be pointed that the appellant was deputed to the College of Nursing of the Madras Medical College from 23.9.1996 to assist the students in class room teaching clinicals and community health in G.O.(D)No.1281, Health and Family Welfare Department, dated 23.9.1996, with a specific condition that on such deputation, if the seniors to the appellant are promoted, she should not make any claim. For easy reference, we extract hereunder the said condition: "3. The Government further direct that the above deputed Nursing Tutors and Nurses will not claim any right over others, who are senior to them, when they are promoted. They have no rights to claim any advantages/preference in view of the above temporary arrangement." Therefore, the claim of the appellant/petitioner, as against the said condition imposed by the Government, which has never been challenged by her, cannot be entertained. 12. The other contention of the appellant is that she is fully qualified, both as per the Nursing Council Regulations and the Adhoc Rules framed by the State Government to be promoted to the next cadre of Reader, but, ignoring her legitimate claim, many persons were promoted by the official respondents, even by relaxing the teaching experience qualifications prescribed for the post of Reader, which is quite unwarranted. In support of the said contentions, the learned senior counsel appearing for the appellant would rely on a judgment of the Honourable Apex Court in SMT.SWARAN LATA vs. UNION OF INDIA AND OTHERS [(1979) 3 SCC 165], wherein it has been held in para No.63 as follows: "No relaxation in qualifications can be made when https://hcservices.ecourts.gov.in/hcservices/ advertisement has duly been issued inviting applications and persons possessing the qualifications advertised, as prescribed by the rules, are available and have submitted their applications. But in the present case, the advertisement itself contained a relaxation clause and therefore, nothing prevented anyone from making application if he/she thinks to be better, if not equally qualified for the post. Therefore, there was no denial of equal opportunity in violation of Article 16 (1)." 13. In the affidavit filed in these writ appeals, the appellant would contend that after the amendment to the Central Regulations, the Government had issued orders in G.O.(D) No.1441 Health and Social Welfare, dated 28.11.2007, approving a panel of five Lecturers for appointment as Readers for the year 2007-2008 and all the said five persons came to be temporarily promoted as Lecturers only in 2006; that the promotion order issued by the Government on 28.11.2007 has been issued by relaxing the rule relating to teaching experience qualification; that all the said persons did not have the requisite teaching experience both under the Central Rules and the State Rules and the appellant had the qualification prescribed under both the Rules as on that date. She has further stated that the Government had issued further orders on 8.7.2008, empanelling five lecturers for promotion as Readers and granted them promotion on the said date and all the said five persons actually came to be promoted as Lecturers only on 18.7.2007 and within one year, they were granted promotion as Readers by relaxing the Rules relating to teaching experience qualification; that thus ten persons have been promoted as Readers in 2007, 2008, all of whom except Mrs.Mangala Gowri had acquired their P.G.degree only after the appellant; that the qualification prescribed in the Central Rules and the State Rules have been given a go-bye by relaxing the Rules in their favour, while the appellant who is fully qualified both under the Central Rules and the State Rules was ignored and she continues to be a Lecturer. 14. For these averments made by the appellant in the form of affidavit, no reply worth considering, has emanated from the official respondents. When such is the position, we are unable to understand as to what made the official respondents to ignore the candidature/claim of the appellant and promote the persons with insufficient qualification, that too by relaxing their teaching experience qualification, is a million dollar question that remained unanswered throughout. In fact, the appellant in the reply affidavit filed by her in W.P.No.28662 of 2006 at para No.3 https://hcservices.ecourts.gov.in/hcservices/ has stated that she has never questioned the authority of the Government to relax any rule. Her contention is that when persons with required qualification are available, the authorities cannot seek to ignore them and appoint persons who do not possess such qualification and experience either by relaxing the Rule or otherwise. It is not the case of the official respondents that the appellant does not possess the required qualification as on the date when the five candidates were promoted to the cadre of Reader, even by relaxing the teaching experience. In these circumstances, the ratio laid down by the Honourable Apex Court in the judgment cited above, would squarely apply to the facts of the case. 15. Therefore, though we are not in a position to uphold the claim of the appellant to date back her promotion as Lecturer to the year 2001-2002 and her claim that the official respondents should be directed to promote only such of those Lecturers to the post of Readers, in the College of Nursing with the qualification prescribed by the Indian Nursing Council, as published in the regulation for establishing College of Nursing (B.Sc. Nursing) in letter dated 6.12.2005, we are convinced of the claim of the appellant that candidates with insufficient qualification were promoted ahead of her, ignoring her claim, that too by relaxing the teaching experience qualification. Hence, we direct the official respondents to promote the appellant to the post of Reader on and from the date when the five candidates were promoted to the cadre of Reader in Nursing by the order of the Directorate of Medical Education, dated 30.11.2007, creating even a substantive post, if need be. The official respondents are directed to issue necessary orders in this regard within twelve weeks from the date of receipt of a copy of this order. With such direction, W.A.No.314 of 2007 is entitled to be allowed in part. 16. Coming to the challenge of the