IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 31 / 01 / 2012 CORAM THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAO AND THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN W.P.NOS.380 OF 2008, 27595 OF 2008 AND 18194 OF 2009 W.P.NO.380 OF 2008 1.J.Merula 2.V.Ahila 3.G.Lakshmi 4.Gowri Mohan ... Petitioners Versus The Commissioner Chennai Corporation District Family Welfare Department Chennai. ... Respondent PRAYER: Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of Writ of Mandamus, to direct the respondent herein to consider the promotion of the petitioners in the post of Maternity Child Health Officer, as per the panel prepared by the respondent in ref. Ma.Ku.Na (Ma) Ma.Ku.No.F5/1066/2007 dated 22.01.2008 and to promote the petitioners herein as Maternity Child Health Officers, in accordance with the service rules with all monetary and attendant benefits. For Petitioners : Mr.P.T.Perumal For Respondent : Mr.V.Bharathidasan W.P.NO.27595 OF 2008 1.K.Kalaimani 2.S.Vijayalakshmi 3.D.Saraswathi 4.Malarvizhi 5.P.Loganayaki 6.E.Shakila 7.K.Dhanalakshmi 8.G.Chandrakala 9.K.S.Chitra 10.P.Hemavathy 11.V.Shanthi 12.Jamuna A. 13.P.S.Indira 14.D.Parameswari 15.J.Merula 16.V.Ahila 17.Lakshmi Govindaswamy 18.Gowri Mohan ... Petitioners Versus 1.The Tamil Nadu Nurses and Midwives Council Santhome High Road, Chennai  600 006. 2.The School of Health Sciences Indira Gandhi National Open University New Delhi. 3.The Director of Medical Education Kilpauk, Chennai  600 010. 4.The Director of Medical and Rural Health Services Chennai. 5.J.Joshua 6.Maglin R.Samuel 7.R.P.Prasad 8.E.Sheeba Karunyam 9.K.Karthiga (R5 to R9 impleaded as per order dated 16.11.2009 in M.P.No.1 / 2009 in W.P.No.27595 / 2008) 10.The Indian Nursing Council Combined Councils Buildings Kotla Road, Temple Lane, New Delhi  110 001. (R10 impleaded as per order dated 30.11.2009 in W.P.No.27595 / 2008) ... Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of Writ of Mandamus, to direct the 1st respondent to register the additional qualification of the petitioner viz., B.Sc., Nursing in the registration of the petitioners as an additional qualification as per the Degree granted by the 2nd respondent and consequently, directing the respondents 3 and 4 to consider the additional qualification for all monetary and service benefits. For Petitioners : Mr.P.T.Perumal For Respondent - 1 : Mr.A.R.Nixon For Respondent  2 : Mr.R.Thyagarajan, Senior Counsel for Mr.D.Krishnakumar For Respondents  3 & 4 : Mrs.Dakshayini Reddy Government Advocate For Respondents  5 to 9 : Mr.S.Conscious Elango For Respondent - 10 : Mr.M.T.Arunan W.P.NO.18194 OF 2009 Association of Recognised Private Nursing Schools and Colleges Represented by its President R.Vivekanandan ... Petitioner Versus 1.State of Tamil Nadu Rep. By its Secretary to Government Health and Family Welfare (MCAI) Department Fort St. George, Chennai  600 009. 2.The Director of Medical Education Kilpauk, Chennai  600 010. 3.The Director of Medical and Rural Health Services Chennai. 4.The Tamil Nadu Nurses and Midwives Council Santhome High Road, Chennai  600 004. 5.The School of Health Services Indira Gandhi National Open University New Delhi. ... Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of Writ of Mandamus, to forbear the respondents 1 to 4 from allowing the 5th respondent from conducting the Post Basic B.Sc. Nursing Degree course in the study centers at Tamil Nadu for the purpose of conferring the Post Basic B.Sc. Nursing Degree without the recognition of the respondents 1 and 4. For Petitioner : Mr.T.Chellapandian For Respondents  1-3 : Mrs.Dakshayini Reddy Government Advocate For Respondent - 4 : Mr.A.R.Nixon For Respondent  5 : Mr.R.Thyagarajan, Senior Counsel for Mr.D.Krishnakumar COMMON ORDER D.HARIPARANTHAMAN, J. In view of the common issues involved in these writ petitions, they have been taken up together for final disposal and a common order is passed. 2.The petitioners numbering 4 in W.P.No.380 of 2008 are working as Staff Nurses in the Hospitals run by the Chennai Corporation. The Commissioner, Chennai Corporation is the sole respondent in the said writ petition. The petitioners have passed Post Basic B.Sc. Nursing. They filed the writ petition seeking for a direction to the respondent to consider them for promotion to the post of Maternity Child Health Officer as per the panel prepared by the respondent in the proceedings dated 22.01.2008 and to promote them as Maternity Child Health Officers in accordance with the service rules. 3.The petitioners numbering 18 in W.P.No.27595 of 2008 are Staff Nurses working in Government Hospitals. They registered their names in the Tamil Nadu Nurses and Midwives Council, after completing Diploma in Nursing and Midwifery course. They completed the said course during the period 1980 and 1996. They underwent Post Basic B.Sc. Nursing through distance mode in Indira Gandhi National Open University in the study centres run by them in Tamil Nadu between 1995 and 2007. They sought to register their additional qualification viz., Post Basic B.Sc. Nursing with the Tamil Nadu Nurses and Midwives Council. However, the Tamil Nadu Nurses and Midwives Council refused to register their additional qualification. Hence, they filed the writ petition in W.P.No.27595 of 2008 seeking for issuance of writ in the nature of mandamus directing the Tamil Nadu Nurses and Midwives Council to register their additional qualification. 4.In W.P.No.27595 of 2008, the Tamil Nadu Nurses and Midwives Council, Chennai is the first respondent; the School of Health Sciences, Indira Gandhi National Open University, New Delhi is the second respondent; the Director of Medical Education, Kilpauk, Chennai is the third respondent; the Director of Medical and Rural Health Services, Chennai is the fourth respondent. Respondents 5 to 9 are individuals, who underwent B.Sc., Nursing regular course, while the petitioners did the same through distance mode. Indian Nursing Council, New Delhi is the 10th respondent. 5.The writ petition in W.P.No.18194 of 2009 is filed by the Association of Recognised Private Nursing Schools and Colleges, Chennai. The Association has sought for issuance of writ in the nature of mandamus forbearing the respondents 1 to 4 from allowing the 5th respondent viz.,School of Health Services, IGNOU, Delhi from conducting Post Basic B.Sc. Nursing course in the study centres at Tamil Nadu for the purpose of conferring Post Basic B.Sc. Nursing without the recognition of the respondents 1 and 4. 6.In W.P.No.18194 of 2009, the Secretary to Government, Health and Family Welfare Department, Government of Tamil Nadu is the first respondent. The second and third respondents are the Director of Medical Education and the Director of Medical and Rural Health Services, Chennai respectively. The fourth respondent is the Tamil Nadu Nurses and Midwives Council, Chennai and the fifth respondent is the School of Health Services, Indira Gandhi National Open University, New Delhi. 7.The Indira Gandhi National Open University, New Delhi (shortly "IGNOU") is a Central University established by an Act of Parliament (Act 50 of 1985) in the year 1985, in accordance with the provisions contained in Section 2(f) of the University Grants Commission Act, 1956 and thus, IGNOU is empowered to award degrees in terms of Section 22(1) of the University Grants Commission Act, 1956. 8.IGNOU conducts various programmes and awards Degrees / Diplomas / Certificates. We are concerned herein about the conferring of Post Basic B.Sc. Nursing by IGNOU to the candidates, who studied in the study centres at Tamil Nadu. 9.At this juncture, it is relevant to take note of the Indian Nursing Council Act, 1947 that was enacted by the Parliament, an Act to constitute Indian Nursing Council, to establish uniform standard of training for Nurses, Midwives and Health Visitors. In this regard, it is pertinent to note Sections 10(1) and 11(1) and more particularly, Section 11(1)(c) of the Indian Nursing Council Act, which read as follows: "10. Recognition of qualifications. (1) For the purposes of this Act, the qualifications included in [Part I of] the Schedule shall be recognised qualifications, and the qualifications included in Part II of the Schedule shall be recognised higher qualifications. 11. Effect of recognition. [(1)] Notwithstanding anything contained in any other law,- (a) any recognised qualification shall be a sufficient qualification for enrollment in any State register (b) no person shall, after the date of the commencement of this Act, be entitled to be enrolled in any State register as a nurse, midwife, [auxiliary nurse-midwife,] health visitor, or public health nurse unless he or she holds a recognised qualification : Provided that any person already enrolled in any State register before the said date may continue to be so enrolled notwithstanding that he or she may not hold a recognised qualification : Provided further that any person who was immediately before the said date entitled to be enrolled in any State register but was not so enrolled shall, on application made in this behalf before the expiry of two years from the said date be entitled to be enrolled in that register ; (c) any person holding a recognised higher qualification shall be entitled to have the qualification entered as a supplementary qualification in any State register in which he or she is enrolled, and after the said date no person shall be entitled to have entered as a supplementary qualification in any State register any qualification which is not a recognised higher qualification." The aforesaid provisions make it clear that if the higher qualification is recognised by including the same in PartII of the Schedule of the Indian Nursing Council Act, the person, holding the recognised higher qualification, shall be entitled to have the qualification entered as a supplementary qualification, in any State register, in which he / she is enrolled, as per Section 11(1)(c) of the Indian Nursing Council Act. 10.Section 2(c) of the Indian Nursing Council Act defines that "State Council" means a Council (by whatever name called) constituted under the law of a State to regulate the registration of Nurses, Midwives or Health Visitors in the State. In the State of Tamil Nadu, the Tamil Nadu Nurses and Midwives Council is the State Council, as per Section 2(c) of the Indian Nursing Council Act, 1947. The Tamil Nadu Nurses and Midwives Council is constituted under the Tamil Nadu Nurses and Midwives Act, 1926. Section 5 of the Tamil Nadu Nurses and Midwives Act provides for registration of Nurses, Midwives, Health Visitors and Auxiliary Nurse  Midwives in the Tamil Nadu Nurses and Midwives Council. It is relevant to extract Section 5 of the Tamil Nadu Nurses and Midwives Act, which reads as follows: "5.Registration of Nurses, Midwives, Health Visitors and Auxiliary Nurse  Midwives  (1) The Council shall maintain a register of Nurses, Midwives, Health Visitors and Auxiliary Nurse  Midwives and in such register shall be entered the names of all nurses, midwives, health visitors and auxiliary nurse  midwives, who have undergone the course of training and passed the examination and fulfil the conditions prescribed. The register referred to in sub-section (1) shall consist of such parts and shall be maintained in such manner as may be prescribed." 11.Section 11(1) of the Tamil Nadu Nurses and Midwives Act empowers the State Government, to frame rules, to carry out the purposes of the Act. Section 11(2) of the Tamil Nadu Nurses and Midwives Act provides for various matters regarding which, rules could be framed, by the State Government. We are concerned herewith Section 11(2)(b) and 11(2)(c) of the Tamil Nadu Nurses and Midwives Act, which read as follows: "11.(1) The State government may, after previous publication, make rules to carry out all or any of the purposes of this Act, not consistent therewith. (2) In particular, and without prejudice to the generality of the foregoing power, they may make rules - (a) ..... (b) regulating the conditions of admission to the register ; (bb) ..... (c) regulating the conduct of any examinations which may be prescribed as a condition of admission to the register, and any matters ancillary to or connected with such examinations." 12.Section 12 of the Tamil Nadu Nurses and Midwives Act provides for framing of bye-laws by the Tamil Nadu Nurses and Midwives Council not inconsistent with law, for various matters mentioned therein. We are concerned with Section 12(1)(a) of the Tamil Nadu Nurses and Midwives Act and the same is extracted hereunder: "12.(1) The Council may make bye-laws not inconsistent with this Act or any other law--- (a) for regulating the compilation, maintenance and publication of the register; " 13.Bye-law 4 framed under Section 12(1)(a) of the Tamil Nadu Nurses and Midwives Act is relevant for this case and the same is extracted hereunder: "4.Every registered nurse, midwife, auxiliary nurse-midwife or health visitor who applies to the Registrar for registration in respect of any additional qualification as approved by the Indian Nursing Council and included in Part II of the Schedule appended to the Indian Nursing Council Act as amended, obtained subsequent to her registration under this Act, shall pay a fee of Rs.5.00 for each such entry in the register." 14.Appendix-1 of the bye-laws prescribes the form of register of Nurses, Midwives, Health Visitors and Auxiliary Nurse Midwives under Section 5 of Tamil Nadu Nurses and Midwives Council Act, 1926. Appendix-1 of the bye-laws is also relevant and the same is extracted hereunder: "Appendix I Form of Register of Nurses, Midwives, Health Visitors and Auxiliary Nurse Midwives under Section 5 of the Act. (1)Serial number (2)Registration certificate number (3)Name (4)Prescribed qualification * (5)Additional qualification (6)Date of registration (7)Place of profession and address * Qualification required for registration, date of qualification and place of training." A reading of the aforesaid provisions make it clear that the State Councils, including Tamil Nadu Nurses and Midwives Council, shall register the recognised qualifications, as well as the higher qualifications, in its register, as per Section 10(1) read with 11(1) of the Indian Nursing Council Act. Without registering the qualifications, in the register maintained by the State Council, no person could carry on the profession as Nurses and Midwives etc. 15.It is not in dispute that the petitioners in W.P.No.27595 of 2008 are in possession of recognised qualification, as per Section 10 of the Indian Nursing Council Act and registered their names in the Tamil Nadu Nurses and Midwives Council, during 1980 and 1996. Pursuant to such recognised qualification, they are employed as Staff Nurses in Government Hospitals. While they are serving in the Government Hospitals, they pursued Post Basic B.Sc. Nursing, through distance mode, offered by IGNOU, in the study centres in Tamil Nadu during the period 1995 and 2007 and those study centres are (i) Saveetha College of Nursing, Chennai (ii) M.A.Chidambaram College of Nursing, Chennai (iii) Adhiparasakthi College of Nursing, Melmaruvathur and (iv) Ramakrishna Institute of Paramedical Sciences, Coimbatore. 16.The Tamil Nadu Nurses and Midwives Council filed a counter affidavit in W.P.No.27595 of 2008 stating that the study centres, wherein the petitioners underwent the Post Basic B.Sc. Nursing, were not recognised by the Indian Nursing Council at the relevant time, when the petitioners pursued their courses. It is further stated that the Government of Tamil Nadu also has not approved those study centres. Thus, the higher qualification acquired by the petitioners, could not be considered as a recognised one, under the Indian Nursing Council Act and therefore, the same could not be registered as additional qualification, by the Tamil Nadu Nurses and Midwives Council, in the register maintained by them, under Section 5 of the Tamil Nadu Nurses and Midwives Council Act. 17.The Director of Medical Education and the Director of Medical and Rural Health Services have also taken the same stand as that of Tamil Nadu Nursing and Midwives Council. 18.Though the Indian Nursing Council, respondent 10 in W.P.No.27595 of 2008 has filed a counter affidavit, it is not stated as to whether its study centres, where the petitioners studied at the relevant time i.e., between 1995 and 2007, were recognised by the Indian Nursing Council. The counter affidavit filed by the Indian Nursing Council and the documents produced by them, would indicate that the Indian Nursing Council permitted the study centres of IGNOU, where the petitioners pursued their Post Basic B.Sc. Nursing course, to conduct programmes only after 2007. While regular B.Sc. Nursing course is of two years duration, Post Basic B.Sc. Nursing course, through distance mode, is of three years duration. 19.At this juncture, the contents of the letter dated Nil June 2004 of the Indian Nursing Council, addressed to the Tamil Nadu Nurses and Midwives Council, that is produced by the Tamil Nadu Nurses and Midwives Council in the typed set are extracted hereunder: "Sir / Madam, Please refer to your letter No.27/NC/2004 dt. 28th April, 2004. The following six study centres of IGNOU is recognized by the Indian Nursing Council from 10th February, 2000 for 30 seats for P.B.B.SC. (N) Course viz., 1.R.A.K.College of Nursing, New Delhi 2.College of Nursing, Kanpur 3.College of Nursing, Hyderabad 4.College of Nursing, Bangalore 5.College of Nursing, Ahmedabad 6.College of Nursing, Calcutta. " In the said letter, the Indian Nursing Council stated that only six centres mentioned therein were recognised by the Indian Nursing Council, to conduct Post Basic B.Sc. Nursing course and the centres, wherein the petitioners studied, are not mentioned therein. But, the Indian Nursing Council has not stated in the counter affidavit as to whether the centres, where the petitioners studied, were recognised by them. Therefore, it follows that the study centres where the petitioners studied were not recognised by the Indian Nursing Council. 20.In the letter dated 09.06.2006 of the Tamil Nadu Nurses and Midwives Council, addressed to the Director, IGNOU, it is stated that the approval of Indian Nursing Council for each study centre in Tamil Nadu is mandatory to register the additional qualification of candidates, in their register. 21.IGNOU filed counter affidavit in W.P.No.27595 of 2008 wherein it is stated that the Indian Nursing Council has approved the Post Basic B.Sc. Nursing programme of IGNOU, in the year 2000, by way of a resolution dated 02.06.2000. 22.We have perused the said resolution dated 02.06.2000. The same is not relating to the study centres of IGNOU in Tamil Nadu. In our view, the reliance placed on the resolution dated 02.06.2000 of the Indian Nursing Council is of no use. 23.Likewise, reliance placed by IGNOU on the letter dated 14.06.2001 of the Indian Nursing Council stating that Post Basic B.Sc. Nursing course of IGNOU is recognised by Indian Nursing Council and the same is registerable with any State Nursing Council under Section 11 of the Indian Nursing Council Act is also of no use. In our view, it is of general nature. Unless recognition is granted by the Indian Nursing Council, to conduct courses in the study centres of IGNOU, in Tamil Nadu, the candidates, who acquired higher qualification from IGNOU, cannot seek to register the same, as an additional qualification, in the register maintained by the Tamil Nadu Nurses and Midwives Council, under Section 5 of the Tamil Nadu Nurses and Midwives Council Act. 24.Since the counter filed by the Indian Nursing Council did not bear the names of the Institutes where the petitioners pursued their degrees, it implies that they are not recognised schools. Therefore, no direction as sought for by the petitioners in this writ petition could be issued and hence, it is liable only to be dismissed. We are also fortified in this regard by the judgment of the Honourable Supreme Court in ADARSH SHIKSHA MAHAVIDYALAYA AND OTHERS VS. SUBHASH RAHANGDALE AND OTHERS reported in MANU/SC/0016/2012 (Civil Appeal No.104 of 2012 dated 06.01.2012) wherein the Honourable Supreme Court has decried the practice of admitting students by unrecognised institutions. 25.In W.P.No.18194 of 2009, the Association of Recognised Private Nursing Schools and Colleges has sought for a direction to forbear IGNOU from conducting study centres in Tamil Nadu and to award Post Basic B.Sc. to students studied therein. 26.Indian Nursing Council Act, 1947 enacted by the Parliament governs the field of Nursing education in India. The basic qualification and higher qualification recognised under the Indian Nursing Council Act, shall be registered by the respective State Councils and except this, no option whatsoever, has been contemplated under this Act for the State Councils or the respective State Governments. 27.The Tamil Nadu Nurses and Midwives Act was enacted only for the purpose of providing registration of Nurses in the State of Tamil Nadu. The registration is based on the recognised qualification obtained by the candidates under Section 10 of the Indian Nursing Council Act. Section 5 of the Tamil Nadu Nurses and Midwives Council Act also makes it clear that the purpose of the Act is only for registration of Nurses in the register maintained by the Tamil Nadu Nurses and Midwives Council. 28.Section 11(2)(b) of the Tamil Nadu Nurses and Midwives Council Act provides for making rules by the Government, for regulating the conditions of admissions, to the register, maintained under Section 5 of the Tamil Nadu Nurses and Midwives Council Act, 1926. Rule 32 of the Rules regulating the conditions of admission to the register, is referrable to Section 11(2)(b) of the Tamil Nadu Nurses and Midwives Council Act and Rule 32 is extracted hereunder: "32.Every Nurse, midwife, health visitor or auxiliary nurse-midwife who desires to have her name entered in Section I or II of the Register of Nurses, Midwives, Health Visitors, auxiliarynursemidwives shall apply to the Registrar in Form IV-A Appendix  B to these rules and furnish full particulars of the information required therein. She shall attach to her application any diplomas or certificates of training she holds in original together with a copy of each of such diplomas or certificates of training." From the reading of rule 32, it is clear that this rule provides merely the form under which one should apply to the Tamil Nadu Nurses and Midwives Council to register their names. 29.As already stated above, Section 11(2)(c) of the Tamil Nadu Nurses and Midwives Council Act, 1926, is relating to the power of the Government to regulate the conduct of examination, that may be prescribed as condition, to register the name, under Section 5 of the Tamil Nadu Nurses and Midwives Council Act, 1926. Rule 37 of the Rules is for the conduct of examinations and connected matters and the same is traceable to Section 11(2)(c) of the Tamil Nadu Nurses and Midwives Council Act and Rule 37 is extracted hereunder: "37.With the approval of the Government, the Council shall from time to time authorize such institutions as may be deemed competent in that behalf to train nurses, midwives, health visitors or auxiliary nurse-midwives and to grant diplomas or certificates to nurses, midwives, health visitors, or auxiliary nurse  midwives so trained for the purpose of admission to the register under rule 32. Such authorization may, if the Council deems it necessary be given with retrospective effect from such earlier date as may be specified by it." Rule 37 contemplates that the Tamil Nadu Nurses and Midwives Council shall authorise the institutions, to impart training of Nurses, Midwives etc., and to grant Diplomas / Certificates to those persons. 30.Firstly, Rule 37 is beyond the rule making power under Section 11(2)(c) of the Tamil Nadu Nurses and Midwives Council Act. The Government may conduct some examinations under this rule to register a qualified person under Section 5 of the Tamil Nadu Nurses and Midwives Council Act. Authorisation, approving or recognition of institutions is not contemplated under Section 11(2)(c) of the Tamil Nadu Nurses and Midwives Council Act. That is, once the course and the institution is recognised by the Indian Nursing Council, under Section 10 of the Indian Nursing Council Act, the candidates, who have obtained qualification / higher qualification referable to PartI and PartII of the Schedule under Section 10 of the Indian Nursing Council Act, shall have a right to get registered in the State Council and neither the State Council nor the State Governments could deny such registration. 31.Section 11(2)(c) of the Tamil Nadu Nurses and Midwives Council Act shall be read along with Section 5 of the Tamil Nadu Nurses and Midwives Council Act. In fact, even in the matter of conducting examination by the State for the purpose of registering in the State Council itself, is doubtful, since conducting of such an examination