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Karnataka High Court · body

2000 DIGILAW 827 (KAR)

N. Renuka v. Director of Medical Education

2000-12-11

P.VISHWANATHA SHETTY

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ORDER P. Vishwanatha Shetty, J.—The Petitioner, in this petition, was an applicant for study of post-graduation course in Nursing. In this petition, she has sought for quashing of the Notification dated 10th October, 2000 issued by the State Government amending Rule 4 of the Karnataka Selection of Candidates for Admission to M. Sc. Nursing Degree Course Nursing Rules, 1995, and for a further direction to the Respondents to consider her case for admission for study of post-graduation course in Nursing without reference to the said Rules. 2. Few facts which are not in serious dispute and which are relevant for the disposal of this petition may be stated as hereunder: The Petitioner is presently working as a Nurse at Victoria Hospital, Bangalore. According to her, she is a graduate in Nursing and she has been working as a Nurse for the last 13 years and has secured 73.7 per cent in B. Sc. Nursing. The Government of Karnataka by means of Notification dated 25th July, 1995 had framed the Rules known as Karnataka Selection of Candidates for Admission to M. Sc. Degree Course in Nursing Rules, 1995 (hereinafter referred to as "the Rules"). The said Rule prescribes the eligibility and provides for the procedure for selection of candidates for admission to M. Sc. in Nursing. Sub-rule (1) of Rule 4 of the Rules provides for constitution of a Selection Committee for selection of candidates for M. Sc. in Nursing. Sub-rule (2) of Rule 4 of the Rules provides that the Selection Committee constituted in terms of Sub-rule (1) should select candidates on merit-cum-reservation basis on the basis of the percentage of marks secured in Basic of Post Certificate or B. Sc. Nursing examination. The 1st Respondent by means of Notification dated 25th August, 2000 invited applications from eligible candidates for admission for study of M. Sc. course in Nursing. Pursuant to the said notification, several candidates including the Petitioner had submitted their applications. The eligible candidates were called for interview by the Selection Committee on 22nd September, 2000. From the original papers placed before me, it is seen that the name of the Petitioner is shown at Sl. No. 1 amongst the in-service candidates who were called for interview for admission for study of M. Sc. Nursing for the academic year 2000-2001. The eligible candidates were called for interview by the Selection Committee on 22nd September, 2000. From the original papers placed before me, it is seen that the name of the Petitioner is shown at Sl. No. 1 amongst the in-service candidates who were called for interview for admission for study of M. Sc. Nursing for the academic year 2000-2001. Before the final list of the candidates who were called for interview was published, Rule 4 of the 1995 Rules was amended by means of Notification dated 10th October, 2000. However, the amended Rule in so far as it relates to in-service candidates are concerned, provides that the selection shall be made on the basis of seniority. The Respondents by means of Notification dated 13th October, 2000, a copy of which has been produced as Annexure-D to the writ petition published the list of in-service candidates selected for study of M. Sc. in Nursing. In the said list, the Respondents-3 to 5 have been shown as having been selected for study of M. Sc. in Nursing. The Petitioner having been aggrieved by her non-selection for study of M. Sc. in Nursing, as noticed by me earlier has presented this petition before this Court on 19th October, 2000 challenging her non-selection. 3. Learned Counsel for the Petitioner in support of the prayer of the Petitioner that Proviso given to Rule 4 of the Rules which provides that the selection for study of M. Sc. in Nursing in so far as in-service candidates are concerned should be made purely, on the basis of seniority, submitted that the said Rule is highly unreasonable and discriminatory in nature. According to the learned Counsel, when the selection for M. Sc. Nursing course is required to be made from amongst in-service candidates on the basis of the marks secured by them, there is absolutely no justification to make an exception in so far as the in-service candidates are concerned and provide for selection only on the basis of seniority in service. He submits that since the object of selection is to pick up more meritorious and best talented candidates for the purpose of study of post-graduate course, there is absolutely no justification to make selection purely on the basis of seniority in-service. He submits that since the object of selection is to pick up more meritorious and best talented candidates for the purpose of study of post-graduate course, there is absolutely no justification to make selection purely on the basis of seniority in-service. Secondly, he submitted that since Proviso given to Rule 4 of the Rules came to be included by means of Notification dated 10th October 2000 providing for selection for study of M. Sc. in Nursing in so far as in-service candidates are concerned only on the basis of seniority, long after the selection process for the academic year 2000-2001 had commenced and after the candidates were called for interview and a merit list was prepared by Respondents-1 and 2, Rule 4 of the Rules as amended by means of Notification dated 10th October, 2000 cannot be made applicable in so far as it relates to admission for study of M. Sc. in Nursing for the academic year 2000-2001 is concerned. In other words, it is his submission that even if the Rule is held to be valid in law, the said Rule must be held to be prospective in nature and could be made applicable only in so far as it relates to the selection for the academic year subsequent to 2000-2001 and not for the academic year 2000-2001. In support of this submission, he relied upon the decision of this Court in the case of Sri D.G. Rajanna vs. The Deputy Inspector General of Police and Others, Writ Petition No. 24707 of 1999 disposed of on 3.8.2000 and also in the case of P. Mahendran vs. State of Karnataka, 1990 (1) SCC 405 and in the case of N.T. Bevin Katti, etc., Vs. Karnataka public Service Commission and others, AIR 1990 SC 1233 . 4. However, Sri Vishwanath, learned Additional Government Advocate appearing for Respondents 1 and 2, and Sri Sudarshan Reddy, learned Counsel appearing for Respondents 3 to 5, resisting the contentions of the learned Counsel for the Petitioner submitted that Rule 4 of the Rules has been amended by providing a Proviso by means of Notification dated 10th October, 2000, keeping the interest of the in-service candidates and public interest in mind. According to the learned Counsel, the marks obtained by a candidate in the qualifying examination alone cannot be the basis to assess the merit and suitability of a candidate for study of post-graduation course. According to the learned Counsel, the marks obtained by a candidate in the qualifying examination alone cannot be the basis to assess the merit and suitability of a candidate for study of post-graduation course. According to them, the experience gained by the Nurses working in the hospital must be given greater weightage than the marks obtained in the qualifying examination long prior to their getting into service. It is his submission that the object of providing a few seats for post-graduation course amongst in-service candidates is to give an opportunity to the in-service candidates to improve their qualification so that they can be of greater use to serve the ailing public. Therefore, they submit that the Proviso given to Rule 4 of the Rules as amended is not liable to be declared as either illegal or unconstitutional. Secondly, he submitted that since the final list had not been published, the Respondents were fully justified in making the selection in terms of the Proviso given to Rule 4 of the Rules as amended by means of Notification dated 10th October, 2000. They submitted that by adopting this procedure, the Petitioner is not put to any inconvenience or hardship and her case is required to be considered on the basis of her seniority at a later stage and she has been given an equal opportunity along with other in-service candidates on the basis of seniority. It is their further submission that since the course had commenced two months' back; and if at this stage the selection of Respondents-3 to 5 is set aside, it would result in irreparable injury to the said Respondents and therefore, there is absolutely no justification for this Court to interfere in the selection of Respondents-3 to 5. 5. In the light of the rival contentions advanced by the learned Counsel appearing for the parties, the two questions that would arise for consideration in this petition, are- (i) Whether the proviso inserted to Rule 4 of the Rules by means of Notification dated 10th October, 2000 is required to be declared as illegal and unconstitutional? (ii) Whether it was not permissible for Respondents-1 and 2 to apply Proviso given to Rule 4 of the Rules as amended which came into force by means of Notification dated 10th October, 2000 as the selection process for study of M. Sc. in Nursing had already commenced? (ii) Whether it was not permissible for Respondents-1 and 2 to apply Proviso given to Rule 4 of the Rules as amended which came into force by means of Notification dated 10th October, 2000 as the selection process for study of M. Sc. in Nursing had already commenced? Regarding the First Question: Before I proceed to consider the first question, it is useful to extract Rule 4 of the Rules which stood prior to amendment made to Rule 4 of the Rules by means of Notification dated 10th October, 2000, which reads as follows: 4. Selection Committee.-(1) The State Government shall, by notification, constitute a Selection Committee for selection of candidates to the course of M. Sc., Degree in Nursing. 2) The Selection Committee constituted in Sub-rule (1) shall select the candidates on merit cum-reservation basis, on the percentage of marks secured in Basic/Post certificate B. Sc., Nursing examination. 3) The Selection Committee shall notify the list of selected candidates in the Notice Board or the College of Nursing, Bangalore and shall also submit a copy of such list to the Director of Health Services and Director of Medical Services. By means of amendment, a Proviso was provided to Rule 4 of the Rules immediately after Sub-rule (2) to Rule 4. The said Proviso reads as follows: Provided that selection of in-service candidates shall be made on the basis of seniority. As it can be seen from the Proviso given to Sub-rule (2) of Rule 4 as amended, the selection of in-service candidates is required to be made only on the basis of seniority. No doubt, before amendment made to Sub-rule (2) of Rule 4 of the Rules by providing the Proviso referred to above, the selection for study of M. Sc., degree in Nursing was required to be made solely on the basis of the merit of the marks secured by a candidate in the qualifying examination irrespective of the fact that the candidate who sought admission is an in-service candidate or not. However, as noticed by me earlier, in the impugned amendment so far as in-service candidates are concerned, the selection is required to be made only on the basis of seniority. It is only by virtue of the provision made by the State Government the in- service candidates are given an opportunity to seek admission for study of post-graduation course in Nursing. It is only by virtue of the provision made by the State Government the in- service candidates are given an opportunity to seek admission for study of post-graduation course in Nursing. Therefore, it is on account of the policy decision of the Government, Nurses who are on full-time employment under the State are given an opportunity to improve their qualification by seeking admission for study of post-graduation course in Nursing. It is stated on behalf of the Respondents that three seats are reserved for in-service candidates. While the State which provides for an opportunity to the in-service candidates to secure higher qualification in its wisdom provides for procedure for selection of such in-service candidates, unless the procedure or the method provided for selection of in-service candidates, unless the procedure or the method provided for selection of in-service candidates is either arbitrary, unreasonable or violative of the rights guaranteed to the Petitioner, such a rule or procedure prescribed is not liable to be interfered with by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India. Now, the question is whether the impugned proviso can be struck down either as being arbitrary, unreasonable or violative of the rights guaranteed to the Petitioner? In the instant case, instead of making the selection purely on the basis of the marks obtained in the qualifying examination, the impugned proviso states that the selection of the in-service candidates should be made on the basis of seniority of their service. I am of the view that the said provision cannot be dubbed as either arbitrary, unreasonable or violative of the rights guaranteed to the Petitioner under Article 19 of the Constitution of India. It is well known that even for the purpose of promotion, generally seniority is one of the mode prescribed for consideration. It cannot be disputed that the experience in work and seniority in service will, to a large extent, contribute for development of personality of a candidate and improving his/her efficiency in the discharge of the work for which a candidate has been appointed. Merely because a candidate has secured certain higher percentage of marks in the qualifying examination, cannot lead to an indisputable inference that such a candidate is more meritorious than a candidate who is more experienced in service. Merely because a candidate has secured certain higher percentage of marks in the qualifying examination, cannot lead to an indisputable inference that such a candidate is more meritorious than a candidate who is more experienced in service. The experience a Nurse gets working in a Hospital over the years, would make her more suitable and meritorious than a candidate who has secured higher percentage of marks in the qualifying examination who has put in lesser number of years of service. These are the matters on which the State and its Authorities who have specialised knowledge and information are more suited to take a decision. Such decisions are in the nature of a policy decision. As noticed by me earlier, unless the said decisions, which have been incorporated as a Rule, is, on the face of it, suffers from vice of either unreasonableness or arbitrariness, or discriminatory in nature, it is not permissible for this Court in exercise of its writ jurisdiction to substitute its views for the views of the State. Further, the seniority in service also normally indicates that such persons are generally older in age also. One of the qualifications prescribed in Sub-rule (2) of Rule 3 of the Rules is that a candidate should have put in five years of service. Therefore, it is only the candidates who have put in not less than five years of service are only made eligible to be considered for admission for study of post graduation course. In this background, it is not possible to take the view that the selection of inservice candidates should be made purely on the basis of the merit in the qualifying examination. The post-graduation course in question is in respect of Nursing. The State Government requires suitable Nurses with higher qualification to treat the patients in government hospitals. Under these circumstances, if the State Government is of the view that the persons who have put in larger number of years of service must be given a preferential claim, the said basis cannot be said to be unreasonable or arbitrary. I do not find anything wrong in the Proviso given to Sub-rule (2) of the Rule. Under these circumstances, if the State Government is of the view that the persons who have put in larger number of years of service must be given a preferential claim, the said basis cannot be said to be unreasonable or arbitrary. I do not find anything wrong in the Proviso given to Sub-rule (2) of the Rule. Therefore, even assuming that the object of the selection is only to select more meritorious candidates, a person who has secured a few more marks in the qualifying examination cannot be considered to be more meritorious even after five years of service in the department. As noticed by me earlier, a person who gets experience over the years may prove to be more meritorious and suitable to the post than a candidate who had secured a few more marks in the qualifying examination and who has no such experience. Therefore, as noticed by me earlier, I am of the view that the impugned Rule is not liable to be quashed and declared as illegal on the grounds urged by the learned Counsel for the Petitioner. Regarding the second question: However, the impugned proviso came to be incorporated to Rule 4 of the Rules only by means of Notification dated 10th October, 2000. The Notification shows that the applications for study of post-graduation course in Nursing was invited on 25th August, 2000 and thereafter the candidates who had submitted the applications were called for interview on 22nd September, 2000. The list prepared by the Committee for the interview of the candidates which is made available to me shows that the name of the Petitioner was shown at Sl. No. 1 as the Petitioner had secured more marks than other in-service candidates who had been called for interview. The impugned Rule in explicit terms does not make it retrospective in operation. The Notification issued calling for applications or the interview cards sent to the Petitioner and other candidates does not indicate that the applications were called for and the candidates were called for interview subject to the amendment that may be made to the Rule providing for selection for post graduation course. The Notification issued calling for applications or the interview cards sent to the Petitioner and other candidates does not indicate that the applications were called for and the candidates were called for interview subject to the amendment that may be made to the Rule providing for selection for post graduation course. Under these circumstances, since the selection process for admission to post-graduation course had already commenced, I am of the view that the selection process is required to be completed only on the basis of the Rule that existed as on the date of inviting applications and also calling for all the candidates for interview. In the circumstances, the Proviso given to Rule 4 of the Rules cannot have any application so far as the selection process which had already commenced. Sub-rule (2) of Rule 4 of the Rules can be applied only in respect of the selection process which would commence only after coming into force of the said Rule i.e., after 10th October, 2000. The Supreme Court in the case of N.T. Devinkatti (supra) has held that a statutory rule or government order is prospective in nature unless it is expressly or by necessary implication made to have retrospective effect; and if the recruitment Rules are amended retrospectively during the pendency of selection, in that event selection must be held in accordance with the amended Rules. The said decision further says that the admission to a post should be made on the basis of Rules existing on the date of commencement of the selection process. It is useful to refer to paragraph-11 of the said decision which reads as follows: 11. There is yet another aspect of the question. Where advertisement is issued inviting applications for direct recruitment to a category of posts, and the advertisement expressly states that selection shall be made in accordance with the existing rules or government orders, and if it further indicates the extent of reservations in favour of various categories, the selection of candidates in such a case must be made in accordance with the then existing rules and government orders. Candidates who apply and undergo written or viva voce test acquire vested right for being considered for selection in accordance with the terms and conditions contained in the advertisement, unless the advertisement itself indicates a contrary intention. Candidates who apply and undergo written or viva voce test acquire vested right for being considered for selection in accordance with the terms and conditions contained in the advertisement, unless the advertisement itself indicates a contrary intention. Generally, a candidate has right to be considered in accordance with the terms and conditions contained in the advertisement unless the advertisement itself itself indicates a contrary intention. Generally, a candidate has right to be considered in accordance with the terms and conditions set out in the advertisement as his right crystallises on the date of publication of advertisement, however he has no absolute right in the matter. If the recruitment Rules are amended retrospectively during the pendency of selection, in that event selection must be held in accordance with the amended Rules. Whether the rules have retrospective effect or not, primarily depends upon the language of the rules and its construction to ascertain the legislative intent. The legislative intent is ascertained either by express provision or by necessary implication; if the amended Rules are not retrospective in nature the selection must be regulated in accordance with the rules and orders which were in force on the date of advertisement. Determination of this question largely depends on the facts of each case having regard to the terms and conditions set out in the advertisement and the relevant rules and orders. Lest there be any confusion we would like to make it clear that a candidate on making application for a post pursuant to an advertisement does not acquire any vested right of selection, but if he is eligible and is otherwise qualified in accordance with the relevant rules and the terms contained in the advertisement, he does acquire a vested right of being considered for selection in accordance with the rules as they existed on the date of advertisement. He cannot be deprived of that limited right on the amendment of rules during the pendency of selection unless the amended rules are retrospective in nature. The same view has been taken by the Supreme Court in the case of Mahendran (supra). At paragraph-5 of the said decision, the Supreme Court has observed thus: It is well settled rule of construction that every statute or statutory rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. The same view has been taken by the Supreme Court in the case of Mahendran (supra). At paragraph-5 of the said decision, the Supreme Court has observed thus: It is well settled rule of construction that every statute or statutory rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. Unless there are words in the statute or in the Rules showing the intention to affect existing rights the rule must be held to be prospective. If a rule is expressed in language which is fairly capable of either interpretation it ought to be construed as prospective only. In the absence of any express provision or necessary intendment the rule cannot be given retrospective effect except in matter of procedure. The amending Rules of 1987 do not contain any express provision giving the amendment retrospective effect nor there is anything therein showing the necessary intendment for enforcing the rule with retrospective effect. Since the amending Rules were not retrospective, it could not adversely affect the right of those candidates who were qualified for selection and appointment on the date they applied for the post, moreover as the process of selection had already commenced when the amending Rules came into force, the amended Rules could not affect the existing rights of those candidates who were being considered for selection as they possessed the requisite qualifications prescribed by the Rules before its amendment moreover construction of amending Rules should be made in a reasonable manner to avoid unnecessary hardship to those who have no control over the subject matter. The view expressed by the Supreme Court referred to above, rendered while considering the case of the parties for appointment can be made applicable in equal force even in respect of selection for admission for study of post-graduation course. Therefore, I am of the view that the non-selection of the Petitioner as against the claim of Respondents-3 to 5 purely on the basis of seniority made relying upon the Proviso given to Sub-rule (2) of Rule 4 of the Rules is illegal. 6. Now, one other question that would arise for consideration is as to whether the selection of any one amongst the Respondents-3 to 5 is required to be set aside to accommodate the Petitioner. 6. Now, one other question that would arise for consideration is as to whether the selection of any one amongst the Respondents-3 to 5 is required to be set aside to accommodate the Petitioner. Having regard to the facts and circumstances of the case, I am of the view that it would not be in the interest of justice to set aside the selection of any one of the said Respondents. Admittedly, the said Respondents were admitted for study of post-graduation course in Nursing about two months' back and all of them are in government service. Therefore, keeping in mind larger public interest and to work out equities in this case, I am of the view that it will be in the interest of justice to direct the Respondents to admit the Petitioner for study of post-graduation course in Nursing without disturbing the admission of Respondents-3 to 5 by increasing one more seat. The post-graduation course is only in Nursing. The increase of the one more seat in the peculiar circumstances of the present case, having regard to the nature of the course and the Institution in which Post-Graduation Course is imparted, is a Government Institution, is not likely to disturb the academic standard in the institution. Therefore, in the light of the discussion made above, I make the following order: (i) The prayer of the Petitioner challenging the validity of the Rule is hereby rejected. (ii) The Respondents are directed to admit the Petitioner for study of post-graduation course in Nursing by increasing one more seat forthwith. (iii) No order is made as to costs. 7. In terms stated above, this petition is allowed and disposed of. Rule issued is made absolute. 8. Sri K. Vishwanath, learned Additional Government Advocate is given four weeks' time to file his memo of appearance.