IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8278 of 1997 KIRAN KUMARI, D/o Sri Kapil Deo Prasad of Gandhi Chowk, P.S. Chapra Town, District Saran, Chapra … Petitioner Versus 1. THE STATE OF BIHAR 2. Addl. Commissioner cum Special Secretary, Health, Medical Education & Family Welfare Department, Govt. of Bihar, New Secretariat, Patna 3. Controller of Examination, Para Medical Course, Admission Test, 1996, Health Department, Govt. of Bihar, New Secretariat, Patna 4. Superintendent, Nalanda Medical College, Hospital, Patna … Respondents ----------- 11. 22.7.2010 No one appears for the petitioner. Mr. Mayank Rukhaiyar, A.C. to G.A.5 represents the State. The prayer of the petitioner in this writ application reads as follows: “A) A writ in the nature of certiorari or any other appropriate writ, order/s, direction commanding the respondent for the following- i) To quash the communication bearing letter no. 1072 as contained in Memo No. 1072 dated 16th of July, 1997 issued by Superintendent of N.M.C.H. addressed to the Controller of Examination, Health, Services, Bihar, Patna to the effect that the petitioner since had become 33 years and thus was not eligible for the admission in the training 2 course as per the circular issued by the Health Department, bearing Memo No. 246(6) dated 14th of March, 1991 by virtue of which the maximum age limit for admission to the course was fixed at 25 years. B) To writ in the nature of mandamus or any other appropriate writ/ order/s, direction, commanding the respondents for the following: i) To admit the petitioner forthwith to staff nurse Grade „A‟ course forthwith at Nalanda Medical College Hospital (hereinafter referred to as the N.M.C.H.). ii) To hold that the petitioner is fully eligible. Competent to be admitted to the staff nursing Grade „A‟ course. iii) To declare the provisions/ direction, circular/ order fixing 25 years as, the outer age limit for admission to the aforesaid course to be ultravires. (iv) To hold that the memo no. bearing memo no. 246 (6) dated 14.3.1991 issued by Additional Commissioner cum Special Secretary, Health, Medical Education and Family Welfare Department, Govt. of Bihar, Patna fixging outer age of 25 years for aforesaid for training course to be ultra vires.” 3 From a perusal of the materials on record it would appear that the petitioner had offered her candidature in Para Medical Course Admission Test Bihar, 1996 and was also declared to have passed such examination test whereafter she was allotted Nalanda Medical College Hospital for undergoing her course. The Superintendent of Nalanda Medical College Hospital, however, by his order dated 16.7.1997 had refused to take admission of the petitioner in Nursing Course on account of her being over age having attained 33 years of age. The case of the petitioner seems to be that when neither the advertisement had prescribed the maximum age nor the Government rules with regard to appointment in Government service had fixed the limit of 25 years as maximum age, the view of the Superintendent relying the Health Department circular dated 14.3.1991 laying down the criteria of maximum age limit of 25 years for undergoing Nursing course was arbitrary and thus violative of Article 14 of the Constitution of India. 4 In this case when no counter affidavit was filed at the stage of admission an interim order was passed on 20.10.1997, the relevant portion whereof reads as follows: “Learned counsel for the petitioner submits that the age limit fixed, vide Annexure 8, is contrary to the regulations framed by the Indian Nursing Council for the Courses of Studies for Auxiliary Nurse Midwife. Learned counsel has shown the Syllabi and Regulations for the aforesaid Courses, on perusal whereof I find that under the heading “Entries Requirements” the prescribed minimum age for admission is 16 years and upper age limit is 35 years. Petitioner‟s case has been rejected on the sole ground that she being 33 years of age has crossed the prescribed upper age limit. Prima facie, there appears to be no justification for reducing the upper age limit which disqualified the petitioner from taking admission. In the prospectus and the advertisement, no such upper age limit has been prescribed. Under such circumstances, I feel persuaded to pass an interim order 5 directing the respondents to admit the petitioner in the training course for staff Nurse Grade „A‟ provisionally, subject to the final result of the writ petition.” Subsequent order of this Court dated 21.12.1998 also records that the petitioner was admitted in Staff Nurse Grade „A‟ training course on provisional basis. The counter affidavit in fact was filed only thereafter on 23.1.1999 wherein the only relevant paragraph dealing with the issue is paragraph 4 which reads as follows: “It is stated that the petitioner appeared in paramedical and nursing competitive 1996 examination. At that time she was 33 years old. So she was not allowed to take admission because of her overage. The Government notification no. 1090 dated 6.8.1997 clearly indicate the maximum and minimum age limits for nursing course. This notification is revised one to the previous notification no. 5044 dated 31.7.1997. As per revised notification the petitioner is definitely overage.” Noticing this stand in the counter affidavit this Court subsequently had passed 6 a detailed order while admitting this writ application on 9.3.1999 which again being relevant is quoted hereinbelow: “It appears that after obtaining interim order from this Court on 20th October, 1997 the petitioner has been taking repeated adjournments the last being on 22.2.99. Today also the same prayer is made. This Court is not inclined to grant the prayer but having regard to the controversy this Court admits this writ application. The writ application will be heard. Since there is no private party in this case, no notice be sent. Rule is made returnable within six months. It is, however, made very clear that even though the petitioner has been admitted pursuant to the Court‟s order for prosecuting her studies, she may be allowed to appear in the examination but her result will not be declared until further order of this Court which may be passed after hearing of this case. It is also made clear that in view of the aforesaid interim order as also in view of the fact that the petitioner is continuing her studies on the strength of the said 7 order, the petitioner will not be entitled to any equity. But if the petitioner succeeds on final hearing of this case only then the petitioner will be entitled her result declared.” In view of the aforementioned situation, this Court has to hold that the lis raised in this writ application still survives for adjudication but then the difficulty is that probably the counsel for the petitioner or the petitioner having obtained the interim order had thought that job was done. As noted above, the petitioner‟s appointment was provisional and she was allowed to appear in the examination by making it clear that her result will be published only after she would succeed in this writ petition and therefore, this Court has to go into the question which has been raised in this writ application. The only possible submission in fact as can be culled from the reading of the writ petition would be invoking principle of equitable estoppel, inasmuch as it is claimed that once the respondents had rightly or wrongly allowed the petitioner to 8 appear in the examination and has published her result of entrance test showing her to be successful candidate of Nursing course, they cannot be allowed to turn around and cancel the candidature of the petitioner on the ground of she being an overage candidate. Mr. Mayank Rukhaiyar in this context would submit that true it is that the advertisement did not prescribe the maximum age limit but then the admission Nursing course is conducted under the statutory provisions laid down by the Indian Nursing Council in which there was already a provision made of maximum age limit being 25 years which was also sought to be referred to and relied by the Superintendent of Nalanda Medical College and Hospital while seeking clarification from the Examination Controller. Unfortunately Mr. Mayank Rukhaiyar also is not in possession of the said notification and therefore, it would be highly unsafe to make an authoritative pronouncement on this issue. In that view of the matter, this 9 Court would direct the Principal Secretary, Health, to look into this aspect and decide as to whether there was a maximum age limit prescribed under the statutory provisions made by the Indian Nursing Council or there was some statutory criteria of the Health Department circular contained in Memo No. 246 dated 14.3.1991 laying down the minimum age for admission of Nursing course to be 17 years and maximum age to be 25 years. If upon such consideration the Principal Secretary, Health, would find that there was no maximum age limit prescribed under any statutory proviso and in fact there was no such embargo as was also sought to be conveyed in the prospectus in Para Medical test examination, he would direct for publication of result of the petitioner but if it is found that there is a statutory proviso prohibiting admission of any person exceeding age of 25 years, he would cancel the candidature of the petitioner by passing a reasoned order. Let such exercise be completed by the Principal Secretary, Health, within a period of six months from 10 the date of receipt/ production of a copy of this order. With the aforementioned observation and direction, this application is disposed of. (Mihir Kumar Jha,J.) Surendra/