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.
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O.P.NO. 32790 OF 2000
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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petition, the Government superseded Ext.P2 by Ext.P4 circular, again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 Since Ext.P2 circular is no longer in force, I need only consider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
