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Babu.P vs State Of Kerala on 14 March, 2007

Kerala High Court
Babu.P vs State Of Kerala on 14 March, 2007
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

OP No. 32790 of 2000(C)



1. BABU.P.
                      ...  Petitioner

                        Vs

1. STATE OF KERALA
                       ...       Respondent

                For Petitioner  :SRI.K.JAJU BABU

                For Respondent  :SRI.V.M.KUTTY MOOSA

The Hon'ble MR. Justice S.SIRI JAGAN

 Dated :14/03/2007

 O R D E R
                                S. SIRI JAGAN, J.

                            --------------------------

                           O.P.NO. 32790 OF 2000

                            -------------------------

           DATED THIS THE 14th DAY OF MARCH, 2007


                                     JUDGMENT

The petitioners in this original petition are Staff Nurses in the

Health Services Department. They are B.Sc. Nursing graduates. They

originally challenged Ext.P2 circular prescribing qualifications for the

post of Nursing Tutors in Health Services Department on the ground

that the qualifications prescribed by Ext.P2 is a lesser qualification than

what has been prescribed by the Indian Nursing Council by Ext.P1,

which are qualifications prescribed by Regulations issued by the Indian

Nursing Council by virtue of their powers under Section 16 of the

Indian Nursing Council Act 1947. During the pendency of the original

petition, the Government superseded Ext.P2 by Ext.P4 circular, again

prescribing qualifications to the post of Nursing Tutor, which are lesser

qualifications than what had been prescribed as per Ext.P1. Therefore

the petitioners have amended the original petition and challenged

Ext.P4. Since Ext.P2 circular is no longer in force, I need only consider

the challenge of the petitioners against Ext.P4. In Ext.P4 it is stated

that these qualifications are in accordance with the qualifications

O.P.32790/2000 2

prescribed as per G.O.(MS)No.74/92/H&FWD dated, 21.5.1992.

Under the said circumstances, the petitioners have also included

prayer for quashing that Government Order also.

2. The petitioners’ contention is that as per Ext.P1, the

qualifications prescribed for Tutors in School of Nursing are as

follows:

“3. Tutors/Clinical Instructors: Master of

Nursing; if not available B.Sc/Post-Basic B.Sc.,

even if this is not available a candidate with

Diploma in Nursing Education & Administration

or any other equivalent post-basic Diploma with

8 years of teaching and administrative

experience in Nursing.

In teaching institutions the Nursing

Superintendent/Deputy Nursing

Superintendent/ Assistant Nursing

Superintendent should have the same

qualification as the Principal and Vice-Principal,

Assistant Nursing Superintendent should have

the same qualifications as Tutors.”

3. On the other hand, in Ext.P4 the qualifications

prescribed are as follows:

“I. (1) Post Basic Degree in

Nursing issued by a recognised University

and recognised by the Indian Nursing

Council.

Or

(2) Successful completion of post

Basic Certificate Course for Nursing

Tutors/Midwifery Tutor conducted by a

recognised institution and recognised by

Indian Nursing Council.

OR

(3) Post Basic Diploma in Nursing

issued by a recognised University and

recognised by the Indian Nursing council.

OR

O.P.32790/2000 3

(4) Degree in Nursing issued by a

recognised University in India and recognised

by Indian Nursing Council.

AND

One year experience in Nursing

gained by serving in State Government/Central

Government/Quasi Government Institution.

II. Registration with Kerala Nurses and

Midwives Council as Nurses and Midwives.”

4. Learned Counsel for the petitioners submits that a

perusal of Exts.P1 and P4 would show that the qualifications

mentioned in Ext.P4 are evidently lesser qualifications than those

prescribed in Ext.P1. According to him the authority to prescribe

qualifications for appointment to various posts in the Nursing faculty

is the Nursing Council and when that Nursing Council prescribes

specific qualifications, the State Government has no power to dilute

those qualifications by prescribing lesser qualifications than what

have been prescribed by the Nursing Council. The petitioners also

refers to the decision of the Supreme Court in State of Tamil

Nadu and another Vs. S.V. Bratheep (minor) and others

((2004) 4 SCC 513). In C.M.P.No.47414/2001, there was an

order of stay dated, 4.10.01, of recruitment to the posts of Nursing

Tutor in Nursing Schools under the respondents in violation of the

Regulations of the Indian Nursing Council.

5. The 2nd respondent has filed a counter affidavit. Going

by the same, I am unable to ascertain whether the 2nd respondent is

supporting or opposing the original petition. In paragraph 2, they

O.P.32790/2000 4

stated as follows:

“2. It is submitted that Indian Nursing

Council prescribe qualification and experience

required for various posts in Nursing Profession

and State Government is the authority to

establish policy decision and prescribes

essential qualifications for various posts in the

state considering the qualifications prescribed

by Indian Nursing Council. Indian Nursing

Council (INC) is the authority who gives

recognitions to the Nursing Teaching

Institutions.”

The averments in paragraph 2 quoted above would mean that

according to the 2nd respondent the authority to prescribe

qualifications for the Nursing faculty is the Indian Nursing Council.

The necessary corollary to the same would be that the State

Government does not have power to dilute those qualifications by

prescribing lesser qualifications than what have been prescribed by

the Indian Nursing Council.

6. It is general knowledge that in respect of various

professional institutions in India, the Central Government has under

various Acts constituted authorities for various faculties who have

been vested with the powers to prescribe qualifications for

appointment to various posts under those faculties and also for

admissions to professional courses offered by those institutions. In

the decision of State of Tamil Nadu and another Vs. S.V.

Bratheep (minor) and others ((2004)4 SCC 513), the Supreme

Court had occasion to consider the question as to whether the State

Government has powers to prescribe qualifications for admission to

O.P.32790/2000 5

degree courses in professional Engineering Colleges which

qualifications are lesser than those prescribed by All India Council

for Technical Education which is one such authority constituted

under a Central Act namely, All India Council for Technical Education

Act 1987. In paragraphs 9 and 10 in that decision, the Supreme

Court has held as follows:

“9. Entry 25 of List III and Entry 66 of

List I have to be read together and it cannot be

read in such a manner as to form an exclusivity

in the mater of admission but if certain

prescription of standards have been made

pursuant to Entry 66 of List I, then those

standards will prevail over the standards fixed by

the State in exercise of powers under Entry 25 of

List III insofar as they adversely affect the

standards laid down by the Union of India or any

other authority functioning under it. Therefore,

what is to be seen in the present case is whether

the prescription of the standards made by the

State Government is in any way adverse to, or

lower than, the standards fixed by AICTE. It is

no doubt true that AICTE prescribed two modes

of admission – one is merely dependent on the

qualifying examination and the other dependent

upon the marks obtained at the common

entrance test. The appellant in the present case

prescribed the qualification of having secured

certain percentage of marks in the related

subject which is higher than the minimum in the

qualifying examination in order to be eligible for

admission. If higher minimum is prescribed by

the State Government than what had been

prescribed by AICTE, can it be said that it is in

any manner adverse to the standards fixed by

AICTE or reduces the standard fixed by it? In our

opinion, it does not. On the other hand, if we

proceed on the basis that the norms fixed by

AICTE would allow admission only on the basis of

the marks obtained in the qualifying examination,

the additional test made applicable is the

common entrance test by the State Government.

If we proceed to take the standard fixed by

O.P.32790/2000 6

AICTE to be the common entrance test then the

prescription made by the State Government of

having obtained certain marks higher than the

minimum in the qualifying examination in order

to be eligible to participate in the common

entrance test is in addition to the common

entrance test. In either event, the streams

proposed by AICTE is inexorable and that

minimum alone should be taken into

consideration and no other standard could be

fixed even the higher as stated by this Court in

Dr.Preeti Srivastava case. It is no doubt true, as

noticed by this Court in Adhiyaman case that

there may be situations when a large number of

seats may fall vacant on account of the higher

standards fixed. The standards fixed should

always be realistic which are attainable and are

within the reach of the candidates. It cannot be

said that the prescriptions by the State

Government in addition to those of AICTE in the

present case are such which are not attainable or

which are not within the reach of the candidates

who seek admission for engineering colleges. It

is not a very high percentage of marks that has

been prescribed as minimum of 60% downwards,

but definitely higher than the mere pass marks.

Excellence in higher education is always insisted

upon by a series of decisions of this Court

including Dr. Preeti Srivastava case. If higher

minimum marks have been prescribed, it would

certainly add to the excellence in the matter of

admission of the students in higher education.

10. Argument advanced on behalf of the

respondents is that the purpose of fixing norms

by AICTE is to ensure uniformity with extended

access of educational opportunity and such norms

should not be tinkered with by the State in any

manner. We are afraid, this argument ignores

the view taken by this Court in several decisions

including Dr. Preeti Srivastava case that the

State can always fix a further qualification or

additional qualification to what has been

prescribed by AICTE and that proposition is

indisputable. The mere fact that there are

vacancies in the colleges would not be a matter

which would go into the question of fixing the

standard of education. Therefore, it is difficult to

O.P.32790/2000 7

subscribe to the view that once they are qualified

under the criteria fixed by AICTE they should be

admitted even if they fall short of the criteria

prescribed by the State. The scope of the

relative entries in the seventh schedule to the

Constitution has to be understood in the manner

as stated in Dr. Preeti Srivastava case and,

therefore, we need not further elaborate in this

case or consider arguments to the contrary such

as on application of occupied theory no power

could be exercised under Entry 25 of List III as

they would not arise for consideration”

7. In view of the said decision, which although is in relation

to prescription of qualification for admissions to engineering

courses, is equally applicable to appointment of faculties for

teaching those courses,it is clear that the authority constituted

under the relevant Act in respect of professional faculties is the

ultimate authority to prescribe qualifications for admission as well as

appointment of Teachers to the faculties. The decision would

further show that the State Government although can prescribe

additional or further qualifications in order to further ensure

excellence, in the matter of higher education, the State

Governments have no power vested in them to prescribe

qualifications which are lesser than those prescribed by the

statutory authority. In this case admittedly the Nursing Council has

as revealed in Ext.P1, which is not under dispute before me, has

prescribed specific qualifications for appointment to the post of

Nursing Tutors. Evidently the qualifications mentioned in Ext.P4 are

lesser qualifications than what have been prescribed as evidenced

by Ext.P1. These qualifications are stated to be prescribed as per

O.P.32790/2000 8

G.O.(MS)No.74/92/H&FWD dated 21.5.92. Therefore both Ext.P4

and the Government order referred to therein are ultra vires the

Indian Nursing Council Act 1947 and the Regulations prescribed by

the Nursing Council in accordance with the powers vested in it

under Section 16 of the Act.

8. Accordingly I strike down Ext.P4 and G.O.(MS)

No.74/92/H&FWD dated 21.5.92 on the basis of which Ext.P4 has

been issued and direct the respondents 1 and 2 that recruitment to

the post of Nursing Tutor in Nursing Schools shall be made only as

per qualifications prescribed by the Nursing Council as shown in

Ext.P1. Needless to say, if any appointment has been made

contrary to the qualifications prescribed as shown in Ext.P1, such

appointments would be unsustainable and liable to be cancelled to

ensure which the respondent shall take steps. If the Government

so wish, they may pass fresh special rules or executive orders in

accordance with the regulations prescribed by the Indian Nursing

Council or they can follow the qualifications prescribed by the

Nursing Council for making appointments to the post of Nursing

Tutor.

Original petition is allowed as above.






                                                  S. SIRI JAGAN, JUDGE


Acd


O.P.32790/2000    9


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