1 wp-5005-10 pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5005 OF 2010 Smt. Sarojini Dadu Bamane .. Petitioner Vs. The Secretary, Raj Wardhan Education Society and ors. .. Respondents Mr. R. V. Govilkar i/by P.D. Pise for petitioner. Ms. Manjiri Parasnis for respondent nos.1 and 2. Mr. R.R. Salvi i/by Mrs. Suvarna Telgote for respondent nos.3 and 5. Mrs. M.P. Thakur, AGP for respondent no.4. CORAM: B. H. MARLAPALLE & U. D. SALVI, JJ. RESERVED ON: OCTOBER 22, 2010. PRONOUNCED ON: OCTOBER 28, 2010 P.C. 1. Heard. 2. Rule. 2 wp-5005-10 3. Respondents waives service. The petition is heard finally by consent of the parties. 4. The petitioner claims that on 15/6/2009 she had submitted an application for admission to the Revised Auxiliary Nursing & Midwifery Course (R.A.N.M) to the respondent no.2 and upon such application, she was admitted to the first batch of 20 students in the month of August, 2009. The duration of the course is of 18 months and while she was preparing for the final examination on completion of the first year and scheduled to take place on 19/7/2010, she received a letter dated 2/6/2010 from respondent no.3 and informing her that her examination form could not be accepted as she was over age at the time of admission. She further states that though the respondent nos.1 and 2 recommended her case, pointing out that she was less than 35 years of age at the time of her admission, the respondent no.3 did not accept her examination form and, therefore, she approached this court. In short, it is her claim that on 15/6/2009 she submitted her application for admission to respondent no.2 and as on that date she was less than 35 years of age. The learned counsel for the petitioner also 3 wp-5005-10 referred to the circulars issued by the Indian Nursing Council from time to time and submitted that as per the admission criteria laid down by the said Council, for admission to ANM/LHV, there is no age bar and hence even otherwise her candidature could not have been rejected solely because as on 1/10/2009 she was more than 35 years of age. It was also claimed by the learned counsel that the respondent no.3 – Council cannot frame any bye-laws or Rules so as to regulate the admission to different nursing courses, contrary to the Rules and Regulations as well as the guide-lines laid down by the Indian Nursing Council. 5. Respondent Nos. 3 and 5 have filed affidavit-in-reply and opposed the petition, whereas respondent no.1 has filed affidavit-in-reply and supported the case of the petitioner. The respondent nos.3 and 5 have referred to the provisions of the Maharashtra Nurses Act, 1966 and the Maharashtra Nursing Council By-laws as amended on 17/3/2003. By referring to the provisions of Sections 25 and 26 of the Maharashtra Nurses Act, it has been submitted that the recognition of the training institutions and affiliation of such institutions is within the domain of respondent nos.3 and 5 and subject to the approval of the State Government. Under Section 39 of the Maharashtra Nurses Act, the Council is required to make bye- 4 wp-5005-10 laws with the previous sanction of the State Government and such bye-laws shall not be inconsistent with the provisions of the Act or Rules made thereunder. There are different subjects that are required to be covered under the bye-laws and one of them is the qualifications for admission to and the courses of studies for the examinations. The bye-laws have been amended and published in the Government Gazette dated 24/4/2003 and bye-law No.4B states that any person desirous of being admitted as a student for being trained as ANM (Revised) Course (Multipurpose Health Worker) in any recognized institution shall not be less than 17 years of age and not more than 35 years of age. The said bye-law is reproduced as under: “4B. Auxiliary Nurse-Midwifery (Revised) Course (Multipurpose Health Worker) Terms and Conditions – A person who desirous of being admitted as a student for being trained as Auxiliary Nurse-Midwifery (Revised) Course (Multipurpose Health Worker) in any recognized training institution shall, - (a) have passed the Secondary School Certificate Examination 5 wp-5005-10 (X Standard) conducted by the Divisional Board under the Maharashtra Secondary and Higher Secondary Education Boards Act, 1965 (Mah.XLI of 1965) or its equivalent examination; (b) not be less than seventeen years of age and not more than thirty-five years of age: Provided that, in the case of candidates belonging to any of the Backward Class categories, the Council may relax the age limit as per the orders of the Government issued from time to time; (c) produce reference as to his character from two persons and related to him, one such reference being from a lady; (d) produce a certificate from a registered medical practitioner certifying that he is physically fit to undergo the necessary training and that he is capable of undertaking responsibilities in the ward; (e) produce a certificate that he has been vaccinated within thirty-six months before the date of this certificate.” 6. It has also been pointed out by the respondent nos.3 and 5 that 6 wp-5005-10 the respondent no.2 – College was, for the first time by its letter dated 24/7/2009, permitted by the Council to admit students for R.A.N.M. (18 months) programme and the claim made by the petitioner that she was admitted on 15/6/2009 has to be, therefore, rejected. It is further submitted that the admissions were to be made from 1st August, 2009 and as on that date the petitioner had crossed the age of 35 years. It has also pointed out that the bye-laws and more particularly regarding the eligibility for the admission etc. were circulated well in advance and put up on the website of the Maharashtra Nursing Council before 31/7/2009. In short, it is claimed by the respondent nos.3 and 5 that the petitioner was in-eligible right on the day the respondent no.2 was issued the letter dated 24/7/2009 granting permission to admit students. 7. We have no doubt in our mind that the Maharashtra Nursing Council is a body created under the Maharashtra Nurses Act, 1966 and it is bound to follow the bye-laws framed under the said Act. We do not, in fact, see any conflict in the bye-laws and more particularly prescribing the age limit for admission to various courses, as against the guide-lines framed by the Indian Nursing Council. Just because the Indian Nursing Council in its bye-laws has not prescribed the age limit for ANM/LHV 7 wp-5005-10 course that does not by itself mean that the Maharashtra Nursing Council has no authority in law to prescribe the age limit under bye-law No.4B. In any case, the validity of the said bye-law is not a subject matter of challenge in this petition. At the same time, respondent nos.3 and 5 are right in their contentions that the petitioner could not have been admitted on 15/6/2009 by respondent no.2 and the said admission is only after 24/7/2009, by which date the petitioner had crossed the age of 35 years (here date of birth is 18/6/1974). Though on both these counts we are holding against the petitioner, we are inclined to grant her relaxation and allow her to complete the course for the following reasons. 8. By an interim order dated 16/7/2010, this court directed respondent nos.3 and 5 to process the petitioner’s application in accordance with law and permit her to appear in the examination scheduled on 19/7/2010. However, it was made clear that the permission so granted was ad-hoc and provisional and shall not create any equity in favour of the petitioner. Consequently, the petitioner has appeared for the said examination held on 19/7/2010 and within few months from now she is likely to complete the course of 18 months’ duration. From the record it is revealed that she belongs to schedule caste and the proviso below bye-law 8 wp-5005-10 No. 4B, as quoted hereinabove, provides for some relaxation in age for the backward class students and to be granted by the Council as per the orders of the Government issued from time to time. No explanation has been provided by respondent nos.3 and 5 as to why the petitioner could not be granted a relaxation of about six weeks so as not to treat her as an over age candidate. From the record placed before us by the learned counsel for the respondent nos.3 and 5 we have also noted that Ms. Bhande Anuradha Subhash is born on 11/2/1993 and Ms. Nadaf Shahnaj Akbar is born on 23/6/1993. As on 1/8/2009 both of them were less than 17 years of age and, therefore, under bye-law No.4B they were under age and were not eligible for admission to R.A.N.M. Course. If the bye-law puts the condition of minimum age and maximum age, the students who are under age or over age could not be admitted. The Council cannot be allowed to pick and choose. The action of the Council against the petitioner is, therefore, unsustainable. On all these counts, we deem it appropriate not to penalize the petitioner and deprive her of the admission. The petition must, therefore, succeed. 9. Hence, the petition is allowed and the letter dated 2/6/2010 issued by Respondent No.3 is hereby quashed and set aside. The 9 wp-5005-10 petitioner’s result for the examination held on 19/7/2010, be declared forthwith. 10. Rule is made absolute in the above terms but without any order as to costs. (U. D. SALVI,J.) (B. H. MARLAPALLE, J.)