ORDER
N. Paul Vasanthakumar, J.
Page 1646
1. Petitioners in these writ petitions seek a direction to the respondents 1 and 2 to consider them for appointment as Staff Nurse in the Government General Hospitals and Primary Health Centers, based on the seniority of registration in the Tamil Nadu Nurses and Midwives Council along with the persons who have studied diploma in Nursing and Midwifery in the Government Institutions, without any discrimination between the person who studied in the Government Institutions and Government recognized private institutions.
2. As the issue involved in both the writ petitions are one and the same, it would be suffice if the facts of the case in W.P. No. 39236 of 2005 alone are narrated.
3. The brief facts necessary for disposal of the writ petitions as stated in the affidavit in support of W.P. No. 39236 of 2005 are as follows.
(a) Petitioner passed Higher Secondary course conducted by the Board of Higher Secondary Education, Government of Tamil Nadu and also studied three years diploma course in General Nursing and Midwifery in Annai Sathya Nursing Institute, Periyakumatti, Cuddalore District. The said institution is recognised by the Government of Tamil Nadu and the Tamil Nadu Nursing Council. For having completed the said course/passed the Diploma course, petitioner obtained a certificate on 22.5 .2000 certifying that the petitioner secured first division marks. After passing the Diploma course, petitioner registered her name in the Tamil Nadu Nurses and Midwives Council on 18.7.2000. The said Council also issued a Certificate of Registration bearing registration No. 47343 and the Certificate of Midwife bearing registration No. 53824.
(b) According to the petitioner, the second respondent used to recruit staff nurses in the Government General Hospital and Primary Health Center on the basis of seniority from among the persons whose names are found in the register of the Tamil Nadu Nurses and Midwives Council. Page 1647 The case of the petitioner is that though she registered her name as early as on 18.7.200, till date she was not called for any interview in spite of sending several representations to the respondents 1 and 2. Petitioner submitted her last representation on 25.10.20 05, but even for that she did not receive any reply till date.
(c) The grievance of the petitioner is that only persons, who have studied in the Government Institutions and got diploma in Nursing and Midwifery are called for interview and they alone are appointed in the Government General Hospitals and Primary Health Centers under the purview of the first respondent. Persons studied in the Government recognised/approved private institutions are excluded in the matter of employment as staff nurses in the Government Hospitals and Primary Health Centers under the first respondent. According to the petitioners, common written examinations are being conducted for the diploma course for the students studying both in the Government Institutions as well as in the private institutions; the question papers, evaluation of answer sheets are same and the results are published at the same time and hence all the students are entitled to be treated equally, provided they register their names in the Tamil Nadu Nurses and Midwives Council. Hence the petitioner submits that the action of the respondents excluding the Private Nursing School students is violative of Articles 14, 16 and 21 of the Constitution of India and therefore the petitioners have filed the present writ petition with the above prayer.
4.(i) Respondents 1 and 2 have filed counter affidavit, wherein it is stated that the appointment of staff nurses in Government Service is being made amongst the candidates, who have completed training in the Government Medical and Nursing Institutions with reference to the communal rotation and in accordance with the rank list, prepared according to the performance in the examinations, maintained by the Director of Medical Education. The Director of Medical Education is the authority for imparting training to the students attached to the Nursing Schools in the Government run Medical Colleges in the State.
(ii) It is further stated that as per the Madras Medical Code Volume-I, Chapter XII, Rule 225, in Section 2(3), qualified candidates are admitted for training in Nursing schools and after undergoing the course and passing the final examination, qualified candidates should serve in the Government Hospitals as nurse for a period of three years. It is also averred that Nurse Pupils, who are trained at the expense of the Government, have to serve in the Government Hospitals and even at the admission level, candidates belonging to the State of Tamil Nadu alone are selected on stipendiary basis. The candidates selected for admission are required to sign an agreement to complete their training and remain in Government service at least for a minimum period of three years, for which a bond is directed to be executed by the candidates stating that they will serve as nurse at least for a period of three years. It is further stated in the counter affidavit that the candidates trained during 2001 in the Government Institutions, who belong to OC, BC and SC are still awaiting appointment for the past four years and appointments are given Page 1648 only based on the condition laid down in the Tamil Nadu Medical Code Volume-I and II and Tamil Nadu Subordinate Service Branch-III.
(iii) It is also stated that in the year 2003, the intake of students in the Government run Nursing Schools was only 745 per year and the Government started 12 new schools of Nursing apart from the existing 9 schools and altogether there are 21 schools run by the Government with the total intake of 1795 students and the Government has the responsibility of fulfilling the ambition of the students coming out from these schools by reciprocating the bond executed by them i.e., to serve in the Government Hospitals for a minimum period of three years. It is also stated that the system of appointing staff nurses from among the candidates who have passed out Diploma in Nursing in Government Medical and Nursing Institutions is being followed all these years and if Private Nursing Institution Students are given appointment, the settled position would become unsettled and the Government would not be in a position to keep up its promise to provide employment to the nursing candidates who have passed out from the Government Nursing Institutions as per the agreement and bond executed by such candidates.
5. Four students of the Government Institutions filed impleading petition in W.P.M.P. No. 8215 of 2006 in W.P. No. 36932 of 2005 and by order dated 16.3.2006, they are impleaded as respondents 4 to 7.
6. The learned Counsel for the petitioners submitted that the petitioners having underwent the Nursing Course through the Government approved Institutions and they having passed the examinations conducted by the Common Examination Board and they having secured the diploma which makes them eligible to be registered with the Nursing and Midwives Council, there is no justification on the part of the respondents 1 and 2 to give appointments only to the candidates who underwent their course in the Government Institutions. The learned Counsel therefore submitted that the said action of the respondents 1 and 2 are discriminatory and violative of Articles 14, 16 and 21 of the Constitution of India. The qualification prescribed for the appointment of nurses in the Government Hospitals and Primary Health Centers as per the Madras Medical Subordinate Service for direct recruitment is that a successful training for a period not less than three years in General Nursing of men and women and a training for a period of not less than six months in Midwifery in both cases should be undergone in an institution approved by the State government under Rule 37 of the Rules made under Sub-section 2 of Section 11 of the Madras Nurses and Midwives Act, 1926 with qualification prescribed for registration as Nurses and Maternity Assistants under the said Act. The learned Counsel also submitted that the rules for training of Nurses in the Government Hospitals in the State of Tamil Nadu is issued by the Government through prospectus, in which it is stated that nurse pupils, who successfully complete training and obtain certificate will be eligible for appointment as nurses, but appointment cannot be guaranteed to all or any of the successful candidates. Recruitment will be made by the Director of Health Services and Family Planning in accordance with the Tamil Nadu Medical Subordinate Service Rules. The same is made clear under Rule 16 of the said Rules.
Page 1649
7. The learned Counsel for the petitioners further added that the Schools in which the petitioners undergone their courses having been approved by the Government, the non-consideration of the said course as equivalent to the course underwent by the candidates in the Government Institution is unreasonable and violative of Articles 14 and 16 of the Constitution of India. The approval having been granted, the respondents are bound to treat equally the courses offered in both the Private and Government Institutions, as there is no intelligible differentia between the said two classes of institutions, namely, Government approved Private Nursing Schools and Government Nursing Schools.
8. The learned Additional Advocate General submitted that the appointments in Government Hospitals and Primary Health Centers as Nurses are made under the rules issued under Article 309 of the Constitution of India, wherein the Government institutions alone are treated as recognised Institutions and till date no private institution offering Nurse Course is included in the list of recognised institutions. As the petitioners having underwent nursing course in a private Nursing College, they cannot be equated with the students, who underwent the course in the Government Institutions. The Learned Additional Advocate General further submitted that the admissions in the Government Nursing Institutions are being made based on merits and the Government is paying stipend to all the students of Government Nursing Schools and the candidates are also executing bonds to serve in the Government Hospitals/Primary Health Centers for a period of three years, after completion of training and the Government is to honour the bond executed by the students, whereas the Private Nursing School students are not paid any stipend and no bond is executed by the said candidates. Therefore it is submitted, there is vast difference between the candidates who are undergoing Nursing Course in Private and Government Institutions. The learned Additional Advocate General further submitted that the said procedure for appointment in selecting the students of Government Institution alone is the procedure followed all these years and if the candidates of Private Nursing Institutions are given appointment the settled position would become unsettled and the Government would not be in a position to keep up their promise given to the students, who underwent courses in the Government Institutions. The learned Counsel further raised a technical objection that the procedure adopted for appointing staff nurses in the Government Hospitals is also not challenged by the Petitioners in this writ petitions.
9. The learned Senior Counsel appearing for the impleaded respondents 4 to 7, who underwent their course in the Government Institutions contended that at the time of making selection of candidates in the Government Nursing Schools all the candidates are given opportunity to appear for the entrance test and based on merit, candidates are selected to undergo training in Government Nursing Schools and they are given stipend and the students are executing bonds. Therefore, at the time of admission to the course itself the Government Institution students form a separate class and therefore the procedure adopted by the respondents in selecting only the Government Nursing School Students for appointment in the Government Hospitals and Primary Health Centers are valid. The learned senior Counsel also submitted that unless and until the private institutions are also included in the schedule of the Rules Appendix VIII Part I, the petitioner has no right to claim Page 1650 appointment in the Government Hospitals and Primary Health Centers and the appointment given only to the students of the Government Nursing Schools is valid and no discrimination can be alleged by the petitioner.
10. I have considered the submissions made by the learned Counsel for the petitioner as well as the learned Counsel for the respective respondents. The qualification prescribed for appointment of Nurses by direct recruitment are as follows,
Must not have completed the age of 32 years.
Provided that a woman candidate, who had been admitted to the training referred to in Item (A) of the qualifications specified in Column (2) of the Annexure for Nurses before the 22nd May, 1935, shall be eligible for appointment if she has not completed the age of 40 years. Provided further that the woman candidate who had been admitted to the above training before 30th September, 1953, shall be eligible for appointment if she has not completed the age of 37 years, and
Provided that a candidate belonging to the Scheduled Castes or the Schedules Tribes shall be eligible for appointment to the post of Hospital Social Workers, if she has not completed the age of 40 years.” The special qualification prescribed is that the person eligible for appointment should possess the qualification prescribed in Column (1) of Annexure i.e, a successful training for a period of not less than three years in General Nursing of men and women and for a period not less than six months in Midwives Training in both cases, in an institution approved by the State Government under Rule 37 of the Rules made under Sub-section 2 of Section 11 of the Madras Nurses and Midwives Act, 1926, with qualifications prescribed for registration as Nurses and maternity Assistant under the said Act.
11. It is now useful to refer to the prospectus issued to the students for admission into the Government Nursing Schools for the year 200 5-2006. In Clause 22 of the prospectus it is clearly stated that Nursing students, who have successfully completed training and obtained diploma will be eligible for appointment as Nurses, but appointment cannot be guaranteed to all or any of the successful candidates. Recruitment will be made in accordance with the Tamil Nadu Medical Subordinate Service Rules. The Tamil Nadu Medical Subordinate Service Rules also states that successful training course undergone in an institution approved by the State Government under Rule 37 of the Rules made under Sub Section 2 of Section 11 of the Madras Nurses and Midwives Act, 1926, is a must for selection. From a reading of the above prospectus and the Tamil Nadu Medical Subordinate Service Rules, it is clear that a pass in three year diploma course and registration with the Nursing Council is mandatory. Insofar as the approved institutions are concerned only, there is a dispute.
12. The learned Additional Advocate General and the learned Senior Counsel for the impleaded respondents 4 to 7 submitted that no private institution is included in the list of approved institutions till date and only the Government Nursing Schools are treated as approved Schools and therefore the petitioners cannot be equated with the students of the Government Nursing Schools.
Page 1651
13. At this juncture, the learned Counsel for the petitioners argued that the list of Nursing Schools are not updated after the approval granted by the Government to the Private Nursing Schools. At the time of enactment of rules, Government Nursing Schools alone existed and therefore there was no occasion for the Government to include the Private Nursing Schools in the list. It is not in dispute that Private Nursing Schools are also granted approval by the Government and once the approval is granted it is incumbent on the part of the Government to include the said institutions also in the list of Schools empowered to given training, otherwise there will be two types of institutions one for the purpose of completing the course and registration with the Council and the other for the purpose of completing the course, registration with the Council and also getting appointment in the Government Hospitals and Primary Health Centers. The said classification cannot be declared as valid because once approval is granted by the Government that approval enables the institution to admit students, conduct course, send them for common examination and after passing the examinations, the students are also entitled to register their names in the Nursing Council and after completion of all these requirements if a candidate is not found eligible for appointment in the Government Hospitals and Primary Health Centres, it will be in violation of Articles 14 and 16 of the Constitution of India.
14. The contention of the learned Counsel for the respondents that at the time of admission into the Government Institutions all the students are given equal opportunity and once the students are not selected in the Government Schools they should be treated differently, will not hold good because the private institutions are also granted approval by the very same Government and the students who are undergoing the course in private institutions, though not get stipend, they may also be willing to serve in the Government Hospitals and Primary Health Centres for three years and some of the candidates may be willing to serve more than three years. Hence, denial of appointment to them is clearly discriminatory and the same is impermissible. The contention of the Additional Advocate General for the respondents that the Private Institutions are not included in the list of recognised Institutions for the purpose of appointment in the Government Hospitals is not valid. No list of approved institutions for the purpose of appointment is produced before this Court in spite of giving more than twenty days time.
15. The contention of the learned Senior Counsel appearing for the impleaded respondents that after admission into the Government Nursing Schools, the students become a separate class, and the students admitted in the Private Nursing Schools cannot be equated with the students of the Government Nursing Schools, may be correct only in respect of payment of fees, receiving stipend. But once the students passed out either from the Government Nursing School or from the Private Nursing Schools and having registered their names in the Nursing Council, they shall be treated equally for consideration of appointment in the Government Hospitals and Primary Health Centres. In fact, the prospectus referred above also states that successful completion of training will be an eligibility for appointment and appointment cannot be guaranteed to all or any of the successful candidates. The said clause in the prospectus clearly discloses that there is no promise given to the students admitted in the Government Nursing Schools for appointment Page 1652 in the Government Service. Hence the contention of the learned senior Counsel for the impleaded respondents is unsustainable.
16. The Honourable Supreme Court in the decision (TMA Pai Foundations v. State of Karnataka) in paragraph 25 held that the right to establish Educational Institutions is a fundamental right guaranteed to any citizen under Article 19(1)(g) of the Constitution of India. Once it is recognised as a fundamental right to establish educational institutions, if the students who successfully complete the course are not treated equally like that of the students who underwent the course in the Government Institutions, it will create two types of students, that is one from private institutions and the other from Government Institutions. If Government Institution students alone are given appointment excluding the private institution students, even though they secure the same degree/diploma, it will lead to arbitrariness and definitely in violation of Article 14 and 16 of the Constitution of India. Merely because a student underwent the course in a private institution, he cannot be treated differently and there is no estoppel for the students/petitioners to claim appointment in Government service as Article 16 of the Constitution guarantees equality of opportunity in matters of public employment. The said article contemplates that there shall be equality of opportunity to all citizen in matters of employment, appointment to any post under the State.
17. The only exception to Article 16 is Articles 15(4) and 16(4), which contemplates, State is empowered to make any special provision for the advancement of any socially and educationally backward classes of citizens or for the scheduled castes and scheduled tribes. Definitely, preferring government institution students for the purpose of appointment in the Government services similar to the one now made, is not coming within the purview of Article 15(4) & 16(4) of the Constitution of India. The reservations made by the State in admissions to Educational Institutions without reference to Article 15(4) & 16(4) are struck down by this Court as well as by the Honourable Supreme Court in the decisions (Narayan Sharma v. Pankaj Kr. Lehkar), 2002 (5) Supreme 425 (Kailash Chand Sharma Etc. Etc. v. State of Rajasthan and Ors.) and Full Bench decision of this Court in 2002 WLR 155 (Minor S. Muthu Senthil V. State of Tamil Nadu, etc. and Ors.). In 2002 (5) Supreme 425, the award of bonus marks of 5+10 for residents of concerned district and rural areas within the district respectively was considered by the Honourable Supreme Court and in para 37 it is held that the said award of marks on the basis of residence in the district or rural area is violative of Articles 14 and 16 of the Constitution of India. In (State of Maharashtra v. Rajkumar), the rule made by the State of Maharashtra that a candidate will be considered a rural candidate if he had Page 1653 passed SCC, held from a village or town, having only ‘C’ type municipality, was also held violative of Articles 14 and 16 of the Constitution of India, as it is in the nature of giving bonus for having a residence in ‘C’ type municipality.
18. In the decision (Indira Sawhney v. Union of India), in paragraph 122(4), the Honourable Supreme Court held as under,
The reservations contemplated in Clause (4) of Article 16 should not exceed 50%. While 50% shall be the rule, it is necessary not to put out of consideration certain extraordinary situations inherent in the great diversity of this country and the people. It might happen that in far-flung and remote areas the population inhabiting those areas might, on account of their being out of the main-stream of national life and in view of the conditions peculiar to and characteristic of them need to be treated in a different way, some relaxation in this strict rule may become imperative. In doing so, extreme caution is to be exercised and a special case made on.
From the above it is clear that reservation is permissible even under Article 16(4) only upto 50%. Here in this case, the respondents are reserving all the seats in the Government Hospitals and Primary Health Centers, which is in effect 100% reservation in favour of the students of the Government Nursing Schools. The same cannot be held as valid.
19. The respondents contention that the petitioners having underwent the Nursing Course in the Private Institution, knowing fully well that they are not entitled to seek appointment in the Government Hospital/Primary Health Centres, cannot be sustained in view of the settled position that there cannot be any estoppel or waiver of fundamental right as held by the Honourable Supreme Court in the decisions (Basheshwar Nath v. Commissioner of Income Tax, Delhi), (Olga Tellis v. Bombay Municipal Corporation), (Nar Singh Pal v. Union of India and Ors.), 199 9 (3) MLJ 347 (Pappa v. Government of Tamil Nadu) and a decision of mine in W.P. No. 4421 of 2006 dated 17.4.2006 (N.S. Balasubramanian v. Food Corporation of India, New Delhi).
20. The learned Senior Counsel for the impleaded respondents cited the Judgment of the Supreme Court reported in 1985 (1) LLN 245 (Narender Kumar and Ors. v. State of Punjab and Ors.) to the proposition that giving preference to the candidates who have completed Apprenticeship in the matter of appointment was held valid. In the said judgment in para 10 Honourable Supreme Court held that the reservation of 50% of the post for Page 1654 Apprenticeship training in preference to others is justified in view of Section 22(2) of the Apprentices Act, 1961. However, the said view was not affirmed by the Honourable Supreme Court in the matter of giving preference to Apprenticeship trainees of Tamil Nadu Electricity Board. A Division Bench of this Court though held that the Apprentices, who have completed the apprenticeship training are entitled to preference than others, the Honourable Supreme Court set aside the said judgment in an unreported decision made in C.A.Nos.5285 to 5328 of 1996 dated 3.10.1996. The Honourable Supreme Court, citing the judgment (U.P. State Road Transport Corporation and Anr. v. U.P. Parivaban Nigan Shishukhs Borezar Sangh and Ors.) held as follows.
We are of the view that this Court has clearly laid down that the Apprentice-Trainees have no right to be appointed in preference to other applicants.
The Division Bench of the High Court based its finding on the following reasoning:
On a careful analysis of the directions and guidelines issued by the Supreme Court, we are of the view that their Lordships of the Supreme Court do not appear to have subscribed to the idea of subjecting the apprentices who have successfully completed their training to any other of further selection process except satisfying the norms formulated in Paragraph 12 and the person concerned being so observed and appointed thereafter according to the inter-se seniority reckoned with reference to the formula No. (4) of Para 12 of the decision in (Supra) viz., yearwise seniority and among them as per inter-se seniority.
We are of the view that the High Court fell into patent error. After indicating the four benefits to which the apprentice-trainees would be entitled during the process of selection, this Court in Para 13 has, in clear terms, stated that the trainees shall have to go through the process of selection provided under the Service Regulation/ Rules. In the present case the Board/Regulations specifically provided that the post of Technical Assistant is to be filled by way of Selection. All the applicants including the Apprentice are therefore, required to go through the process of selection provided under the Regulations. This has not been done in the present case and the Division Bench of the High Court has directed the Board to appoint the respondents on preferential basis and without going through the selection process.
It is therefore clear that the candidates, who undergo the apprenticeship training are also directed to appear for selection and preference will be given to them only if there is a tie during selection.
21. The claim of preference in giving appointment was also considered by the Honourable Supreme Court in the decision reported in 2003 (3 ) Supreme 556 (The Secretary, A.P. Public Service Commission v. Y.V.V.R. Srinivasulu and Ors.) wherein in para 11, the Honourable Supreme Court held that giving preference does not mean exclusion of others from the purview of selection. The preference should actually to be made in case of tie i.e. If both the Page 1655 candidates are having same marks during interview or selection, the preferential right candidate is entitled to be preferred than the other candidate, who secure equal marks which means in case of tie alone the preference clause will come into play. Therefore the matter is well settled by the Honourable Supreme Court that merely because a person completed Apprenticeship training he is not entitled to get preference excluding others, who have not completed Apprenticeship training. The important point held in that case reads thus,
Whenever a selection is to be made on the basis of merit performance involving competition and possession of any additional qualification or factor is also envisaged to accord preference, preference would only mean that other things being qualitatively and quantitatively equal, those with the additional qualification have to be preferred.
22. Applying the said principle to this case, I hold that the action of the Government in preferring Government School students for giving appointment in the Government Hospitals and Primary Health Centres, excluding the candidates of Private Nursing Schools is arbitrary, illegal and violative of Articles 14 and 16 of the Constitution of India.
23. In the result, the writ petitions are allowed as prayed for. The petitioners are entitled to be treated on par with the candidates, who underwent Nursing Course in the Government Nursing School. No costs. Connected miscellaneous petitions are closed.