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2015 DIGILAW 544 (RAJ)

MOOL CHAND ARYA v. STATE OF RAJASTHAN

2015-02-27

PRAKASH GUPTA, SUNIL AMBWANI

body2015
Order 1. We have heard learned counsel appearing for the parties. 2. All the petitioners are Registered Nurses and Midwife, as per the provisions of Section 13 of the Rajasthan Nursing Council Act, 1964. They possess qualifications of B.Sc. (Nursing). Some of them have also successfully pursued the Course of M.Sc. (Nursing). They were initially appointed on the ex-cadre post of Public Health Nurse (PHN) in the year 1982 and thereafter. They were given the benefit of selection scale in pursuance to the Notification issued in the year 1992, but they were not posted on any encadred post, nor any avenues of promotions were made available for them. 3. The Rajasthan Medical & Health Subordinate Service Rules, 1965 (for short, 'the Rules of 1965') were amended in the year 2010, in which the petitioners are encadred as PHN with 100% recruitment through RPSC. The qualifications prescribed for PHN under the amended Rules are, (1) B.Sc. Nursing or its equivalent qualification from an institute, recognized by the State Government, and (2) Registered in R.N.C. 4. By the same amendment, Nurse Grade-II was also encadred with 100% direct recruitment through RPSC, and for which the qualifications prescribed were, (1) GNM course or its equivalent qualification from an institute recognized by the State Government, and (2) Registered in RNC. 5. The amended Rules provides for promotion to the post of Nursing Tutor to the extent of 50%, out of which 25% posts are provided to be filled up from PHN, and 25% from the Nurse Grade-II. 6. The post of Vice Principal School of Nursing, is provided to be filled up by direct recruitment from Nursing Tutors with 4 years' experience on the post mentioned in column number 5, and the post of Principal School of Nursing, is provided to be filled up 100% by direct recruitment. The eligibility for Vice Principal School of Nursing is 3 years experience on the post mentioned in column number 5. 7. By these writ petitions, the petitioners have prayed for an appropriate writ, order or direction, to quash the impugned Notification dated 08.01.2010. They have also prayed for a direction to amend/rectify the Rajasthan Medical & Health Subordinate Service (Amendment) Rules, 2010, as far as appointment and promotion on the post of Principal-School of Nursing; Vice Principal- School of Nursing and Nursing Tutor are concerned. They have also prayed for a direction to amend/rectify the Rajasthan Medical & Health Subordinate Service (Amendment) Rules, 2010, as far as appointment and promotion on the post of Principal-School of Nursing; Vice Principal- School of Nursing and Nursing Tutor are concerned. A direction has also been sought to create a separate clinical as well as teaching wing in Group-A (Medical Side), and to prescribe the qualification in teaching side as per the qualification prescribed under the Indian Nursing Council Act, as well as the University of Rajasthan Ordinances, and also to prescribe B.Sc.(Nursing) as minimum qualification on the teaching side. 8. It is submitted that the petitioners have been discriminated as against Nurse Grade-II, for which appointment is provided 100% by direct recruitment through RPSC, and for which GNM course is prescribed, is only a diploma arbitrarily made equivalent to B.Sc.(Nursing), and by which unequals have been made equal taking away chances of promotion for the petitioners. 9. In the representation made by the petitioners, it is stated that a further requirement in column number 7 of serial number 3 in the amended Rules, which provides that where suitable PHN will not be available, Nurse Grade-II will be given promotion, is also discriminatory. 10. In the reply filed by Dr. Rajendra Purohit, Deputy Director (Nursing), Directorate of Medical & Health Services, Jaipur, it is stated in paragraphs 3 and 4, as follows:- “3. That the contents of para No.3 of the writ petition are not admitted in the manner stated therein. It is denied that the petitioners are discharing the duties on the post of Nursing Tutor. The petitioners were appointed only as Public Health Nurse which was an ex-cadre post and work was taken from them only on the said post. 4. That the contents of para No.4 of the writ petition are not admitted in the manner stated therein and are replied in terms that since the post of Public Health Nurse was not included in the Rajasthan Medical & Health Subordinate Services Rules, 1965, the petitioners who are working on the post of PHN could not be promoted on higher post. It is however denied that the petitioners were ever assured that the post of PHN would be treated as equivalent to the post of Nursing Tutor. It is however denied that the petitioners were ever assured that the post of PHN would be treated as equivalent to the post of Nursing Tutor. The petitioners cannot compare their cases with that of Nursing Gr.I and Nursing Tutor which are encadred post under the Rules of 1965. However, vide Notification dated 8.1.2010 issued by the Department of Personnel, Government of Rajasthan, Jaipur (Annx.9 to the writ petition) the Rajasthan Medical and Health Subordinate Service Rules, 1965 have been amended as Rajasthan Medical and Health Subordinate Service (Amendment) Rules, 2010 (hereinafter referred to as Amended Rules, 2010) and after the existing part (b) of serial No.4 and entries thereto, the post of Public Health Nurse has been inserted as part (c). The Amended Rules of 2010 also prescribe the source of recruitment and requisite qualifications for the post of PHN. Vide Amended Rules of 2010, the existing part (b) of serial No.3 and entries thereto has also been substituted by providing that the post of Nursing Tutor is to be filled 50% by direct recruitment and 50% by promotion i.e. 25% from PHN and 25% from Nurse Grade-II having five years experience Thus, the channel of promotion from the post of PHN has also been provided in the Amended Rules. The petitioners would be given benefit of promotion on the post of Nursing Tutor which shall become available after 8.1.2010 as per the provisions of the Amended Rules of 2010.” 11. We have considered the submissions and find that the petitioners were discharging the duties on the post of Nursing Tutor from the beginning of their appointment. Their representations were allowed and they were encadred in the service by making amendment in the Rules in the year 2010. The Rules are provided for avenues of promotion to both, Nurse Grade-II and PHN (25% each on the 50% posts of Nursing Tutor, to be filled up by promotion). The petitioners have been encadred and were provided avenues of promotion. They have now turned against Nurse Grade-II, on the ground that they did not have qualification, which is possessed by the petitioners, namely B.Sc.(Nursing), and that in the appointment of Nursing Tutor, only a person with qualification of B.Sc. (Nursing), should be considered. 12. In our view, the grievance raised by the petitioners, is required to be considered, at the first instance, by the State Government. (Nursing), should be considered. 12. In our view, the grievance raised by the petitioners, is required to be considered, at the first instance, by the State Government. This Court does not ordinarily enter into the complaints and make an exercise to find out equivalence of the qualification and the requirement of such qualification for the encadred posts. 13. So far as the petitioners' grievance of avenues of promotion is concerned, it was satisfied by making amendment in the Rules in 2010. The petitioners were appointed and are serving as teachers from the initial date of their appointment. Whether they have sufficient clinical experience to claim parity, with Nursing Grade-II, and whether they are entitled to be promoted as Nursing Tutor, in preference to the Nurse Grade-II who holds diploma as against the petitioners' degree, and whether any further experience is required for appointment as Nursing Tutor, are the issues which fall within the domain of the State Government, which has requisite expertise to consider equivalence of the qualifications for the posts in question. 14. The submission that the petitioners were appointed in the year 1982 and onwards, and thus, they have been discriminated as against those, to whom they have imparted education, is an attractive argument, but that by itself is not a ground, on which we may interfere under Article 226 of the Constitution of India and pass any orders for an amendment in the Rules. 15. The writ petitions are accordingly disposed of, with observation that it will be open to the petitioners to pursue their remedy, by making an appropriate representation to the State Government, which will be considered and decided, expeditiously. 16. A copy of the order will be placed in the connected file.