IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 2730 of 2009()
1. LATHAKUMARI P.S,
... Petitioner
Vs
1. KERALA PUBLIC SERVICE COMMISSION
... Respondent
2. DISTRICT OFFICER,
3. KERALA NURSES AND MIDWIVES COUNCIL
4. DISTRICT MEDICAL OFFICER OF HEALTH
5. STATE OF KERALA RERPESENTED BY
For Petitioner :SMT.P.V.ASHA
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice C.T.RAVIKUMAR
Dated :05/01/2010
O R D E R
K. BALAKRISHNAN NAIR & C.T.RAVIKUMAR, JJ.
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W.A.NO.2730/2009
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Dated this, the 5th day of January, 2010
JUDGMENT
Balakrishnan Nair, J.
The writ petitioner is the appellant. She was an
applicant for the post of Junior Public Health Nurse Grade II in
the Department of Health Services, when applications were
invited for the same by the Public Service Commission (for short
“PSC”) by Ext.P2 notification. She participated in the written
test and in the short list published by the PSC, she was included
in the supplementary list for O.B.C. But, later, it was found by
the PSC that she did not have registration with the Kerala
Nurses and Midwives Council on 17.10.2007, the last date fixed
for receipt of applications as per Ext.P2. Therefore, she was
held to be not qualified and was not included in Ext.P8 rank-list
published by the PSC for the said post. Challenging non-
inclusion of her name in Ext.P8 and seeking consequential
reliefs, the Writ Petition was filed.
2. It is common ground that one of the qualifications
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prescribed for the post is registration with the Kerala Nurses and
Midwives Council. It is also common ground that on
17.10.2007, she did not have registration with the said Council.
As evident from Ext.P7, she was qualified to practice, as she
was having registration in Rajasthan from 23.3.1994. She
submitted an application for registration with the Kerala Council
on 26.12.2006. The application was finally allowed, as evident
from Exts.P5 and P7, on 31.12.2007. So, it is not in dispute that
the appellant did not have registration with the Kerala Nurses
and Midwives Council on the last date for receipt of
applications. A candidate, who does not have the prescribed
qualification as per the Special Rules on the last date for receipt
of applications, is ineligible to apply for the post. It is the
settled position in law and it is the stand taken by the PSC.
Clause 19 of the General Conditions of Ext.P2 notification also
contains this stipulation. Further, it is a well-settled position in
law that the relevant date for determining the qualification of
the applicant is the last date for receipt of applications, unless
otherwise specified. In view of the above facts, we find nothing
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wrong with the stand of the PSC. It is bound by the provisions
of the Special Rules. It has got no power or authority to ignore
or relax the provisions of the rules. The State Government also
supports the said stand.
3. But, the learned counsel for the appellant submitted
that in the case of other Departments, for the very same post
and also for the post of Staff Nurse, the Registration Certificate
issued by the Kerala Council need be produced only before
joining service. In other words, the applicants need not have
Kerala Registration on the last date for receipt of applications.
When such a benefit is granted to similarly placed candidates
who apply for appointment in the same or other Departments,
there is no reason why the said benefit should not be extended
to the candidates who apply for the post of Junior Public Health
Nurse Grade II in the Health Services Department. But, we find
that the appellant has not challenged the above stipulation
contained in the Special Rules. In the absence of any challenge
to the said stipulation in the Special Rules, the appellant, the
State and the PSC are bound by the sane.
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4. But, the learned counsel for the appellant submitted
that she has canvassed the invalidity of the rules in Grounds F
and G in the appeal memorandum. Those grounds are quoted
below for convenient reference:
“F. If at all it was found that the qualification
viz. Registration with the Council in Kerala was
mandatory as on the date of application, as per the
Special Rules, the learned Single Judge ought to
have found that such a provision in the Special Rules
is illegal and arbitrary, at least in the cases of
persons like appellant. When registration with the
council is the authority to practice as Nurse or
Midwife and when that authority to practice is
provided to those with registration from outside,
pending their applications, there is no rationale in
insisting registration at the time of submitting
application for appointment to the post. Rejection of
the candidature for selection and appointment as
JPHN Gr.II for not having the certificate, which is
only the authority to practice, when the candidate is
expected to practice only after entry in service and
that too when that candidate is having the authority
to practice as Nurse or Midwife pending decision on
her application by virtue of Sec.32 of the Travancore
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Cochin Nurses & Midwives Act, even on the date of
her application, is highly unfair and unjust. There is
absolutely no reasonable nexus with the object
sought to be achieved in debarring such applicants
at a time when they are permitted to practice the
profession. The Special Rules to the extent it can be
interpreted to mean that the qualification viz.
Registration with Kerala Nurses & Midwives Council is
mandatory as on the date of application even to
person with registration from other States is
discriminatory, arbitrary and illegal.
G. Equals are treated unequally or unequals
are treated equally treating persons like appellant on
par with freshers who do not have any registration at
all, in total derogation of the fundamental rights of
appellant in violation of her fundamental rights under
Articles 14 and 16 of the Constitution of India. To
say that a person who can validly practice as a Nurse
cannot submit application for appointment to that
very same post is arbitrary, unreasonable and illegal.
No purpose is achieved by insisting such registration
as on date of application, except to deny opportunity
to candidates with outside registration.”
But, we notice that a subordinate legislation can be impugned
only on limited grounds. A Division Bench of this Court in
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Pankajaksy v. George Mathew [1987(2) KLT 723] had
summarised the grounds available for impugning a subordinate
legislation. The relevant portion of the judgment reads as
follows:
“12. Thus, the rule made under a statute by an
authority delegated for the purpose can be
challenged on the ground (1) that it is ultra vires of
the Act; (2) it is opposed to the Fundamental rights;
(3) it is opposed to other plenary laws. To ascertain
whether a rule is ultra vires of the Act, the Court can
go into the question (a) whether it contravenes
expressly or impliedly any of the provisions of the
statute; (b) whether it achieves the intent and object
of the Act; and (c) whether it is ‘unreasonable’ to be
manifestly arbitrary, unjust or partial implying
thereby want of authority to make such rules.”
Going by the principles laid down in the above decision, we find
that no ground has been made out in the above quoted
grounds, to interfere with the rules, even assuming there was a
prayer challenging the relevant provision of the rule. In the
case of some or similar posts, the Government decided, while
framing the Special Rules, to grant relaxation for producing the
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Registration Certificate issued by the Kerala Council till the date
of joining duty. In the case of the present post, the
Government did not give any such relaxation. Such a stand
cannot be described as without authority and therefore, ultra
vires. The same is an area of policy where the Government
should take the decision as the delegate of the legislature. The
High Court, while sitting under Article 226 of the Constitution of
India, cannot re-draft the rules according to its opinion. In this
context, we notice the contention of the learned counsel for the
appellant that the rules should be interpreted in such a way as
to enable the incumbents, who apply for the post, to get time
for obtaining the Kerala Registration till they join duty. Since
there is no ambiguity in the rules, there is no necessity for
interpreting the rules. As we are of the view that the said rule
does not go against any plenary statutory provision or
constitutional provision, there is no necessity to read it down, as
suggested by the appellant.
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In the result, the Writ Appeal fails and it is dismissed.
K. Balakrishnan Nair,
Judge.
C.T.Ravikumar,
Judge.
nm.