Kumari Anamika v. State of Bihar — 1990 DIGILAW 363 (PAT)

Judgment Aftab Alam, J. The four petitioners, candidates for general Nursing and Midwifery Course, 1988 have come to this Court complaining of adverse discrimination against them in the matter of admission to the course. 2. It is said that by an advertisement dated 23.9.88 (contained in Annexure-1) issued at the instance of the second respondent, Director-in-Chief, Health Services, applications were invited for admission to the general Nursing and Midwifery Course, 1988 in the different Medical Colleges and Hospitals of the State. The advertisement further stated that all those candidates whose applications, along with copies of the necessary certificates, were received by 15.10.1988 would be interviewed by a Selection Committee on 28.10.1988 for admission to the course. The advertisement required the candidates to put in their applications in a form prescribed therein. It is relevant to note that clause 9, the las clause of the prescribed application form ran thus: "9. It is certified that the statements/descriptions given above are correct and have been written by me. In case these (statements) were proved incorrect (the candidate) may be expelled from the course at any time and the expenses incurred on the training may also be recovered. Signature of the candidate." 3. Petitioners 1 to 3 having passed the Intermediate of Arts examination in second division and petitioner no. 4 having passed the Intermediate of Science examination also in second division satisfied the minimum qualification required for the course. They were also eligible in terms of age and other requirements. The petitioners applied in pursuance of the advertisement and appeared for interview before the Selection Committee on 28.10.1988 and again on 22.1.1989 and produced the relevant certificates in their originals. A list of 103 candidates selected for admission to the course was issued on 3.5.1989 under the signature of the third respondent, Superintendent, Patna Medical College and Hospital. The names of the four petitioners did not find a place among the selected candidates and aggrieved by this they came to this Court challenging the selection. In the writ application some wanton allegations were made regarding the selected candidates having procured their selection on the basis of forged mark sheets and certificates and by paying illegal gratification to the third respondent. In the writ application some wanton allegations were made regarding the selected candidates having procured their selection on the basis of forged mark sheets and certificates and by paying illegal gratification to the third respondent. It was also alleged that the selection was made in disregard of the reservation policy and the petitioners, members of a backward caste (Kurmi), Annexure-II, were not given due consideration in this regard. In a supplementary affidavit, however, the petitioner's focus their challenge on the ground of adverse discrimination stating that respondents 5 and 6 who had got much lower marks in the Intermediate of Arts examination had been included in the selection panel at serial nos. 62 and 81 respectively while the petitioners had been left out. It was asserted that respondent nos. 5 and 6 had got 431 and 415 respectively as their aggregate marks in the Intermediate of Arts examination whereas petitioner nos. 1 to 3 had secured 520, 468 and 401 marks respectively as their aggregate in the same examination; petitioner no. 4 had secured 433 marks in Intermediate of Science examination. 4. Notices were issued and respondents both official (nos. 1 to 4) and private (nos. 5 and 6) have appeared and filed separate counter-affidavits. The counter-affidavit filed on behalf of respondent no. 3 tells an altogether different story and tends to bye-pass the main ground on which the petitioners' challenge to the selection of the candidate is based. It is stated that the question of the petitioners obtaining higher marks in the Intermediate examination is quite immaterial in as much as the petitioners' applications were not fit for consideration. This was on account of the fact that the applications of petitioners 1, 3 and 4 were not in conformity with clause 9 of the prescribed form which require the candidates to fill up the form in their own hand. A photo copy of the original application form of petitioner no. 1 is Annexure-A to the counter-affidavit and it bears her endorsement on the left side margin, made in course of her interview on 22.1.1989, stating that the application had been written by her husband; a photo copy of the original application form of petitioner no. A photo copy of the original application form of petitioner no. 1 is Annexure-A to the counter-affidavit and it bears her endorsement on the left side margin, made in course of her interview on 22.1.1989, stating that the application had been written by her husband; a photo copy of the original application form of petitioner no. 3 is Annexure-A to the counter-affidavit and it bears her endorsement on the left side margin, made in course of her interview on 22.1.1989, stating that the application was written by her father; a photo copy of the original application form of petitioner no. 4 is Annexure-A/2 to the counter-affidavit and bears her endorsement on the right side margin, stating that the application form had been filled up by her brother. As regards petitioner no. 2 it is stated that in course of her interview on 22.1.1989 she was asked to take down a few lines of dictation and it was found that her writing was very poor and she was not fit for the nursing job. A photo copy of the dictation taken down by petitioner no. 2 is Annexure-A/3 to the counter-affidavit which is quite illegible for all practical purposes. It has been further stated in the counter-affidavit that vide Health Directorate circular no. 763 (6), dated 1.9.1986 a working knowledge of the English language was a basic requirement for the nurses job as it was quite inconceivable that a nurse or even a trainee nurse could reasonably discharge her duties without even a working knowledge of simple English reading and writing. It was on that basis that petitioner no. 2 was found unfit for admission to the course. 5. On the pleadings of the parties, as summarised above it is to be seen as to whether the respondent-authorities were justified in excluding the petitioners from consideration for admission to the course of general Nursing and Midwifery. 6. Petitioners 1, 3 and 4 were not considered on the ground that their applications did not strictly comply with the provisions of clause-9 of the prescribed application form. It is to be noted that clause 9 of the application form had a two-fold requirement; first, that the statements/descriptions relating to the candidate must be correct and secondly that the application form should be filled up by the candidate in his/her own hand. It is to be noted that clause 9 of the application form had a two-fold requirement; first, that the statements/descriptions relating to the candidate must be correct and secondly that the application form should be filled up by the candidate in his/her own hand. It is not the case that any of the statements/descriptions given in those 3 applications forms were incorrect. The refusal to consider those applications was simply on the ground that those were not filled up by the petitioners in their own band. The question for consideration, therefore, is as to whether the second requirement of clause 9 was so stringent as any deviation from it would prove fatal to the candidacy of the 3 petitioners. The answer to this question can be found on an understanding of the object of clause 9 and the nature of the second requirement contained therein. In other words clause 9 of the advertisement may be subjected to some of the same tests as are applied for determining the question as to whether a statute is mandatory or directory. On considering the nature, design and object of this provision and the consequences which would follow on construing it one way or the other I come to the conclusion that the object of clause 9 is to ensure that the selectors should be furnished with accurate data concerning the candidates. The demand for the accuracy of the data in any selection process is entirely justified and any insistence thereon cannot be over emphasised for the discrepancy in the candidates' data shall make the selectors' task impossible. The first requirement, therefore, must be held to be mandatory and a violation thereof would indeed justify the selector to reject the candidates' application. The second requirement, however, only supplements the first in as much as in an application form filled up by the candidate himself there would be lesser chance of any inaccurate statements. The same result, however, can be easily achieved even if the application form has been filled up on behalf of the candidate by some one else than the candidate himself. There may be bona fide and innocent circumstances compelling such a course; temporary disability of the writing hand or the temporary absence from the place where the application is to be made are illustrations that readily come to mind. There may be bona fide and innocent circumstances compelling such a course; temporary disability of the writing hand or the temporary absence from the place where the application is to be made are illustrations that readily come to mind. Holding as mandatory the second requirement of clause 9 shall only lead to serious general inconvenience to innocent persons like the present petitioners 1, 3 and 4 without furthering in any manner the object of fair selection. After all, the requirement to fill up the application form in one's own handwriting is not intended to test the writing ability of the candidate and I do not see how this requirement can affect the selection process in any manner. I, therefore, hold that the omission on the part of the petitioners 1, 3 and 4 to fill up the application form in their own hand cannot be a ground to exclude them from any consideration for admission to the course and there the respondents were clearly in error. The Selection Board could have understandably asked for an explanation from the concerned petitioners for the applications not having been tilled up in there own hand. 7. The case of the second petitioner, however, is on a different footing altogether. She has been refused admission to the course after due consideration and the reason assigned is her lack of even elementary knowledge of English language. It cannot be said that the reason is either unreasonable or has no nexus with the object of the affair at hand. A person having no knowledge of English language cannot be expected even to maintain the bed-head chart of a patient or to read and properly administer the prescriptions written by the doctor and has been justifiably held unsuitable for the course of general Nursing and Midwifery. 8. In view of what has been stated above I do not intend to interfere on behalf of petitioner no. 2 and the application on her behalf is hereby dismissed. So far petitioners I, 3 and 4 are concerned, this application must succeed and I direct the respondents to consider their cases on merits and if they are found otherwise suitable to admit them to the general Nursing and Midwifery Course. 9. This application is allowed in respect of petitioners 1, 3 and 4 and is dismissed in so far as petitioner no. 2 is concerned. 10. 9. This application is allowed in respect of petitioners 1, 3 and 4 and is dismissed in so far as petitioner no. 2 is concerned. 10. There shall be no order as to costs. Application allowed in respect of all petitioners except in case of petitioner no. 2.