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2013 DIGILAW 177 (HP)

Naresh Kumari v. State of H. P.

2013-03-12

RAJIV SHARMA

body2013
JUDGMENT : Rajiv Sharma, J. Key facts necessary for the adjudication of this petition are that the petitioner assailed the appointment of respondent No. 3 as Dai by filing an Original Application before the learned erstwhile Himachal Pradesh Administrative Tribunal. The same was transferred to this Court and assigned new number, i.e., CWP(T) No. 4528 of 2008. It was decided by a Division Bench of this Court on 20.10.2010. The petitioner was permitted to make a representation to the respondent No. 2. Petitioner made a representation on 12.09.2011. The representation made by the petitioner was rejected by the Chief Medical Officer on 13.10.2011. 2. Mr. Ajay Sharma, learned counsel for the petitioner has strenuously argued that the respondent No. 3 was not eligible to be considered for appointment to the post of Dai. According to him, the respondent No. 3 has not completed six months training from CHC, Thural. 3. According to Mr. Pramod Thakur, learned Additional Advocate General and Ms. Anjali Soni Verma, respondent No. 3 was duly eligible to be appointed to the post of Dai. 4. I have heard the learned counsel for the parties and gone through the record carefully. 5. Petitioner has sought the information under the Right to Information Act, 2005. She was informed by the Chief Medical Officer-Cum-PIO, District Kangra that no TBAs training was imparted at CHC, Thural w.e.f. 1986 to 1992. However, eighteen TBAs were trained w.e.f. 20.09.1985 to 19.03.1986 under CHC, Thural. Petitioners name figures at Sr. No. 11 of Annexure P-4. Petitioner has also sought information under the Right to Information Act from the Chief Medical Officer about the year and the duration of the course undertaken by the respondent No. 3. The information was sent by the Block Medical Officer, Thural to the Chief Medical Officer, Kangra at Dharamshala on 04.12.2012. According to the information supplied on behalf of the Block Medical Officer, Thural, the respondent No. 3 has undertaken training from 01.02.1989 to 08.03.1989. Respondent No. 3 has also been registered with the Himachal Pradesh Nurses Registration Council on 30.04.1997. According to the registration, the respondent No. 3 has undertaken Dais training at CHC, Thural w.e.f. 05.08.1988 to 05.03.1989. It is contrary to the information supplied to the petitioner on 04.12.2012. Respondent No. 3 has also been registered with the Himachal Pradesh Nurses Registration Council on 30.04.1997. According to the registration, the respondent No. 3 has undertaken Dais training at CHC, Thural w.e.f. 05.08.1988 to 05.03.1989. It is contrary to the information supplied to the petitioner on 04.12.2012. The duration of the training mentioned in Annexure P-5 is six months, but the information supplied to the petitioner on 04.12.2012, is that the respondent No. 3 has undertaken the training w.e.f. 01.02.1989 to 08.03.1989. The name of respondent No. 3 has been registered by presuming that she has undertaken six months training, which is factually incorrect. 6. The Himachal Pradesh Legislative Assembly has enacted The Himachal Pradesh Nurses Registration Act, 1977 to provide for the registration of nurses, health visitors, midwives, auxiliary nurse midwives and dais in Himachal Pradesh. According to Section 18, every person who complies with such conditions and restrictions as may be prescribed by the Council and, has undergone the necessary course of training or passed the examination, if any, prescribed for nurses, health visitors midwives, auxiliary nurse midwives, nurse dais, trained dais and dais; or is registered as a nurse or health visitor or midwife or auxiliary nurse midwife by any association which is recognised by the council, may apply for registration of his/her name. In the instant case, since the respondent No. 3 has not completed six months training from CHC, Thural, she has been registered by the Himachal Pradesh Nurses Registration Council illegally. It is reiterated that the respondent No. 3 has only undertaken training, even as per the information supplied to the petitioner, w.e.f. 01.02.1989 to 08.03.1989. The respondent No. 3 has stated in the reply that she has undergone training w.e.f. 05.08.1988 to 05.03.1989. However, she has not placed any tangible evidence on record to establish this fact. Surprisingly, as per the information supplied to the petitioner vide Annexure P-4, no TBAs training was imparted at CHC Chural w.e.f. 1986 to 1992. However, eighteen TBAs were trained w.e.f. 20.09.1985 to 19.03.1986. 7. What has been stated in the reply filed by respondents No. 1 and 2, is that earlier the information was supplied to the petitioner without consulting the record and hurriedly, but the fact of the matter is that even as per the reply filed by the respondents No. 1 and 2, the respondent No. 3 has not undertaken six months training. What has been stated is that the respondent No. 3 has undergone the said training in the year 1989. 8. The respondent No. 3 has placed reliance on the information supplied by the Registrar, Himachal Pradesh Nurses Registration Council, Old Dental College Building, Near IGMC, Shimla to the PIO, Directorate of Medical Education, Kasumpati. What has been stated in this information, is that the respondent No. 3 has been registered with Himachal Pradesh Nurses Registration Council on 30.04.1997 on the basis of six months Dais training course. It is factually incorrect. Respondent No. 3 has only undertaken training, even as per the information supplied to the petitioner under the Right to Information Act, 2005, w.e.f. 01.02.1989 to 08.03.1989, though this information is also contrary to the earlier information supplied to the petitioner. The respondent No. 3 has sought employment by getting her name registered with Himachal Pradesh Nurses Registration Council in a most illegal manner. It was incumbent upon the Registrar, Himachal Pradesh Nurses Registration Council to see the certificate at the time of registration whether the respondent No. 3 has completed six months training or not. As per the reply filed by respondents No. 1 and 2, the respondent No. 3 has not renewed her registration after five years. It was necessary for respondent No. 3 to complete the necessary training and only thereafter, she could be interviewed. The respondent No. 3 could not be appointed as Dai by the State Government, merely on the basis of interview, as stated in the reply by the respondents No. 1 and 2. The petitioner has made a detailed representation on 12.09.2011, as per the judgment of this Court, dated 20.10.2010. The same has been rejected by the CMO vide Annexure P/3 on 13.10.2011 by passing a nonspeaking order. Once the petitioner has made a representation, the same ought to have been decided by taking into consideration all the pleas raised by the petitioner in the representation. It was necessary for the Chief Medical Officer, Kangra at Dharamshala while considering the representation made by the petitioner whether the respondent No. 3 has qualified the training course, on the basis of which, she could be registered with the Himachal Pradesh Nurses Registration Council. This aspect has been overlooked by the respondent No. 3, resulting in grave miscarriage of justice. 9. This aspect has been overlooked by the respondent No. 3, resulting in grave miscarriage of justice. 9. Accordingly, in view of the discussions and analysis made herein above, the writ petition is allowed. Annexure P-3, dated 13.10.2011, is quashed and set aside. The appointment of respondent No. 3 as Dai is also quashed and set aside. The respondent No. 2 is directed that in case the petitioner was found suitable in the interview, she be offered appointment as Dai, within a period of three months from today. It is made clear that in the eventuality of the petitioner being appointed as Dai, she will not be entitled to any arrears of salary, but the entire period will be counted for the purpose of increments and retiral benefits. The pending applications, if any, also stands disposed of. No costs.