Research › Search › Judgment

Himachal Pradesh High Court · body

2014 DIGILAW 1559 (HP)

Naresh Kumari v. State of H. P.

2014-11-03

RAJIV SHARMA

body2014
JUDGMENT : Rajiv Sharma, J. 1. The Civil Writ Petition was allowed by this Court vide judgment dated 12.3.2013. The appointment of respondent No. 3 as 'Dai' was quashed and set aside. The respondent No. 3 filed LPA bearing No. 4007 of 2013. The matter was remanded to this Court by setting aside the judgment dated 12.3.2013 in view of the decision taken by the Principal Secretary (Health) to the Government of Himachal Pradesh dated 11.3.2013. 2. Key facts. Interviews for the post of trained Dai were held on 6.8.1997. The petitioner and respondent No. 3 participated in the selection process. The then Medical Officer, Kangra at Dharamshala, vide letter No. Estt./VI/95-6516 dated 12.8.1997 appointed respondent No. 3 as 'Dai'. The petitioner challenged the appointment of respondent No. 3 by filing O.A. before the erstwhile H.P. State Administrative Tribunal. The same was transferred to this Court and assigned CWP-T No. 4528 of 2011. It was decided on 20.10.2010. The petitioner was permitted to make a representation. The petitioner made representation on 12.9.2011. The same was rejected by the Medical Officer Kangra at Dharamshala on 13.10.2011. It is in these circumstances, the petitioner has filed the present petition assailing the appointment of respondent No. 3 being not eligible as per the Recruitment and Promotion Rules, governing the conditions of service of post in question. 3. The petitioner has sought information under R.T.I. about the time duration of the course held at C.H.C. Thural w.e.f. 1986 to 1992 and name wise list of trainees of the course. The information was supplied to the petitioner by the C.M.O.-cum- P.I.O., District Kangra, vide Annexure P-4 dated 12.1.2012. The name of the petitioner is mentioned at Sr. No. 11 for undergoing training at C.H.C. Thural along with other candidates w.e.f. 20.9.1985 to 19.3.1986. The name of respondent No. 3 is not mentioned in this communication. The name of respondent No. 3 has been registered vide Annexure P-5, by the H.P. Nurses Registration Council on 30.4.1997. According to Annexure P-5, respondent No. 3 has undergone training of 'Dai' at C.H.C., Thural from 5.8.1988 to 5.3.1989. 4. Respondents No. 1 & 2 have filed the reply. The name of respondent No. 3 has been registered vide Annexure P-5, by the H.P. Nurses Registration Council on 30.4.1997. According to Annexure P-5, respondent No. 3 has undergone training of 'Dai' at C.H.C., Thural from 5.8.1988 to 5.3.1989. 4. Respondents No. 1 & 2 have filed the reply. According to them, respondent No. 3 was fully eligible and qualified to be considered for the post of trained 'Dai' on having been selected by the Selection Committee on the basis of certificate issued by the Block Medical Officer, C.H.C., Thural as also the certificate of her registration issued by the Registrar, H.P. Nursing Registration Council vide Annexure P-5. It has been admitted in the reply that respondent No. 3 has not got her name renewed till date. 5. Respondent No. 3 has also filed the reply. According to her, she has done training of 'Dai' at C.H.C. Thural from 5.8.1988 to 5.3.1989 vide NHRC No. 7428 Dai' dated 30.4.1997. 6. The parties have also placed on record information supplied by the B.D.O. at page 39 of the Paper Book. According to the information placed on record, respondent No. 3 has undergone one month's training w.e.f. 1.2.1989 to 8.3.1989. Her name was at Sr. No. 19 as per page 40 of the paper book. The Registrar, H.P. Nurses Registration Council, Shimla has also sent communication to P.I.O., Directorate of Medical Education, Kasumpti, Shimla specifically stating therein that the registration of respondent No. 3 was on the basis of 6 months training course, which she has completed from C.H.C. Thural w.e.f. 5.8.1988 to 5.3.1989. As per the record available in the HPNRC in old register on page No. 222. Accordingly, the Block Medical Officer, Thural was directed to file supplementary affidavit as to the variance in the information under the RTI Act and subsequent communication/affidavit filed by the B.M.O. on 11.12.2013. According to the averments contained in the supplementary affidavit, the Block Medical Officer, Thural, received a letter dated 5.1.2012 from the Chief Medical Officer, Kangra alongwith the photocopy of the certificate dated 2.6.1995 issued in favour of respondent No. 3 for verifying the contents of the certificate. According to the averments contained in the supplementary affidavit, the Block Medical Officer, Thural, received a letter dated 5.1.2012 from the Chief Medical Officer, Kangra alongwith the photocopy of the certificate dated 2.6.1995 issued in favour of respondent No. 3 for verifying the contents of the certificate. The record of the Community Health Centre, Thural was again scrutinised and an old file with regard to the training course of TBAs was traced out also containing therein an award roll of 3 number of TBAs having undergone 30 working days training w.e.f. 1.2.1989 to 8.3.1989 including respondent No. 3. This factual position was also conveyed to the Chief Medical Officer by the Block Medical Officer, vide Annexure P-4 dated 27.1.2012. 7. Thus, it is evident from the annexures at page 39 & 40 that respondent No. 3 has only undergone one month's training w.e.f. 1.2.1989 to 8.3.1989 and not 6 months training. This Court has also directed respondent No. 1 to look into the matter. The Principal Secretary (Health), passed the order on 11.3.2013. According to him, there was no requirement of training as per the Recruitment and Promotion Rules framed on 15.10.1973 in the Health Department. 8. The Registrar H.P. Nurses Registration Council, filed the affidavit in compliance to the orders passed by this Court. According to the affidavit filed on 16.1.2014, it was found that the original copy of the application for registration submitted by respondent No. 3 was verified by Block Medical Officer, Thural Kangra and countersigned by C.M.O, Kangra at Dharamshala on 30.4.1997. According to Annexure-'B', respondent No. 3 had made a representation for registering as trained 'Dai' who have completed 6 months said course at CHC Thural, Kangra, H.P. w.e.f. 5.8.1988 to 5.3.1989. Thus, according to the Registrar, H.P. Nurses Registration Council, Shimla, the name of respondent No. 3 has rightly been registered as per the H.P. N.R.C. Act. 9. Mr. K.S.Banyal, Advocate, appearing for respondent No. 3 has also filed written submission on behalf of respondent No. 3. Along with the written submissions, he placed on record the copy of R & P Rules for Class-IV, Subordinate Service (Non- Gazetted) of the Medical and Public Health Department framed on 15.10.1973. According to these rules, the minimum educational qualification for appointment as 'trained Dai' was primary pass. 10. Along with the written submissions, he placed on record the copy of R & P Rules for Class-IV, Subordinate Service (Non- Gazetted) of the Medical and Public Health Department framed on 15.10.1973. According to these rules, the minimum educational qualification for appointment as 'trained Dai' was primary pass. 10. The Legislative Assembly of Himachal Pradesh has enacted the Himachal Pradesh Nurses Registration Act, 1977, (hereinafter referred to as the Act for brevity) to provide for the registration of nurses, health visitors, midwives, auxiliary nurse midwives and dais in Himachal Pradesh. Section 2(d) defines "dai" to mean any person, whether following a hereditary occupation or not, who ordinarily practices midwifery for gain and who has not passed any of the examinations in midwifery recognised by the Council. As per Section 2(o), "trained dai" means a dai who has been granted a training certificate under the bye-laws made by the Council or one who has been registered under sub-section (2) of Section 18. The detailed procedure has been given, the manner in which the registration of nurses, health visitors, midwives, auxiliary nurse midwives, nurse dais, trained dais and dais has to be made as per Section 18(2) of the Act. 11. I have heard the learned Advocates and gone through the records of the case very carefully. 12. What emerges from the facts enumerated here-in-above, is that the interviews for the post of 'trained Dai' were held on 6.8.1997. Respondent No. 3 was appointed on 20.10.1997. The representation was made by the petitioner pursuant to the judgment rendered by this Court in CWP (T) No. 4528 of 2010 on 20.10.2010. The representation was decided without passing a speaking order on 13.10.2011, vide Annexure P-3. It is evident from the information placed on the record by the petitioner vide Annexure P-4, that the name of respondent No. 3 was not included in the list supplied to the petitioner on 12.1.2012 of 'trained dai' who have undergone training w.e.f. 20.9.1985 to 1992. Respondent No. 3 has got her name registered with the Registrar H.P. Nurses Registration Council vide Annexure P-5 dated 30.4.1997. It is specifically stated in the certificate that respondent No. 3 had undergone training of 'Dai; at C.H.C. Thural w.e.f. 5.8.1988 to 5.3.1989. 13. Respondents No. 1 & 2 have filed the reply. Respondent No. 3 has got her name registered with the Registrar H.P. Nurses Registration Council vide Annexure P-5 dated 30.4.1997. It is specifically stated in the certificate that respondent No. 3 had undergone training of 'Dai; at C.H.C. Thural w.e.f. 5.8.1988 to 5.3.1989. 13. Respondents No. 1 & 2 have filed the reply. According to the reply filed by respondents No. 1 & 2, respondent No. 3 has undergone the necessary training for six months. They have justified the appointment of respondent No. 3. The additional information was placed on record at page 40 & 42. According to this information, respondent No. 3 had only undergone one month's training w.e.f. 1.2.1989 to 8.3.1989. Her name was at Sr. No. 19. The stand of the Registrar H.P. Nurses Registration Council, as noticed hereinabove, is that respondent No. 3 was registered on the basis of 6 months training course which she has completed at C,H.C. Thural, Kangra, H.P. w.e.f. 5.8.1988 to 5.3.1989. Confronted with this situation, the Court permitted the B.M.O. to file supplementary affidavit explaining the variance. The B.M.O. filed the detailed affidavit on 11.12.2013. He has admitted categorically in his affidavit that respondent No. 3 had only undergone one month's training w.e.f. 1.2.1989 to 8.3.1989. This information was supplied by him to C.M.O, also. Respondent No. 3 has only undergone one month's training. The Court has also directed the Secretary (Health) to look into the matter. He looked into the matter without going into the entire gamut of the matter and decided against the petitioner on 11.3.2013. 14. The petitioner has also challenged Annexure P-9 dated 11.3.2013. There is no merit in the contention of Mr. K.S. Banyal, Advocate that respondent No. 3 was eligible as per R & P Rules notified on 15.3.1973. The expression used is 'trained Dai'. The minimum qualification prescribed is primary pass. The expression 'trained Dai' would mean as per Recruitment and Promotion Rules, the 'Dai' who has undergone training and subsequently got her name registered under sub section 2 of Section 18 of the H.P. Nurses Registration Act, 1977. According to Section 2(o) of the H.P. Nurses Registration Act, 1977, only those 'trained Dais' could be registered who have been granted training certificate under the bye-laws made by the Council or one who has been registered under sub section (2) of Section 18. According to Section 2(o) of the H.P. Nurses Registration Act, 1977, only those 'trained Dais' could be registered who have been granted training certificate under the bye-laws made by the Council or one who has been registered under sub section (2) of Section 18. The specific stand of respondent No. 3 throughout was that she has done six months training w.e.f. 5.8.1988 to 5.3.1989, on the basis of which certificate was issued to her dated 30.4.1997, vide Annexure P-5. 15. According to the material placed on record, respondent No. 3 had only undergone 30 days training w.e.f. 1.2.1989 to 8.3.1989. The affidavits filed by respondents No. 1 & 2 to the contrary were apparently false. A definite attempt has been made by respondents No. 1 & 2 to mislead this Court by not placing the true facts before it. The B.D.O. in his supplementary affidavit has clearly stated that respondent No. 3 has only undergone 30 days training. The registration of respondent No. 3 by respondent No. 4 i.e. Registrar H.P. Nurses Registration Council was illegal and wrong in the eyes of law. Respondent No. 3 has never undergone six months training, as claimed by her. She could not have been registered by the H.P. Nurses Registration Council. 16. Accordingly, Writ Petition is allowed. Annexure P-9 dated 11.3.2013 is quashed and set aside. The appointment of respondent No. 3 dated 20.10.1997 is quashed and set aside. Respondent No. 2 is directed that in case the petitioner was found suitable in the interview held on 6.8.1997, she be offered appointment as 'Dai' within 8 weeks from today. It is made clear that in the eventuality of the petitioner being offered appointment, she will not be entitled to arrears of salary but the entire period shall be counted for the purpose of increments and pension. The disciplinary proceedings be initiated against respondent No. 3 for obtaining the appointment as 'Dai' in breach of the mandatory provisions of Recruitment and Promotion Rules. The registration of respondent No. 3 vide annexure P-5 dated 30.4.1997, by respondent No. 4 is set aside. It shall be open to respondents No. 1 & 2 to make recovery from the salary of respondent No. 3 from her initial date of appointment i.e. from 20.10.1997 till date. Petition allowed.