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Gujarat High Court · body

2022 DIGILAW 1236 (GUJ)

Nayi Rasiklal Ganpatlal v. State Of Gujarat

2022-10-06

A.Y.KOGJE

body2022
JUDGMENT : 1. This petition under article 226 of the Constitution of India is filed seeking direction to the respondents to give deemed date of promotion to the petitioners to the post of Nursing Tutor primarily on the ground that less qualified and ineligible respondents have been given promotion to the post of Nursing Tutor. 2. Learned Advocate for the petitioners submitted that the petitioners are having the requisite educational qualification as prescribed under the Nursing Tutor Recruitment Rules as per the Indian Nursing Council. Ignoring such Rules, the respondents have promoted employees having lesser educational qualification to the post of Nursing Tutor. Such employees where having P.H.N. degree, which according to the petitioners, is not the required qualification. 2.1 It is submitted that the PHN Course is run at Baroda since 1982 and in the year 1994, Government of Gujarat approved the said course. It is submitted that the institution which is running the PHN Course is not recognized and approved by the State Nursing Council or Indian Nursing Council. It is submitted that as per the Rules, the required educational qualification for the post of Nursing Tutor is as per Rule 3(b). The qualification for the post of Nursing Tutor is as per Rule 3(b)(i), B.Sc. Degree in nursing with 30 years experience as staff nurse in hospital or post basis B.Sc. Degree in nursing or Diploma in Nursing Education. It is submitted that as per the Rules, the above degrees are required to be obtained from the University /Institution, which is recognize by the Indian Nursing Council and State Nursing Council. It is pertinent to note at this juncture that PHN Course is not recognized by Indian Nursing Council or State Nursing Council. It is approved by the Government of Gujarat in the year 1994 only with a view to give employment to the ladies in rural areas, which is stated in Clause-(iv) of Para-2 of GR dated 23.10/11.1994. 2.2 It is submitted that in the year 1991 to 1994 and thereafter from 1994 till date, the petitioners are continuously subjected to discrimination. It is submitted that had the respondents not prepared common seniority list of B.Sc. /PHN /diploma Holders of Staff Nurses then the petitioners might have been promoted to the post of Nursing Tutors first in point of time than the candidates who are having PHN Degree. It is submitted that had the respondents not prepared common seniority list of B.Sc. /PHN /diploma Holders of Staff Nurses then the petitioners might have been promoted to the post of Nursing Tutors first in point of time than the candidates who are having PHN Degree. In the year 2001-02, the respondents prepared another common seniority list of nursing tutor. Therefore, now there are all chances to give promotion to the persons who are less qualified, i.e. the persons who are having PHN degree to the post of Principal and therefore, the action of the respondents is required to be quashed and set aside by this Court. 2.3 It is submitted that respondent Nos.6 to 10 herein were promoted to the post of Nursing Tutor from the post of Staff Nurses in the year 1990 to 1994. It is submitted that the petitioners were also working as Staff Nurses and having required qualification, i.e. B.Sc. (Nursing) for being promoted to the post of Nursing Tutor, but the respondent authorities, ignoring the Rules of Indian Nursing Council and notification issued by the Government of Gujarat, promoted persons like respondent Nos.6 to 10, who are having PHN degree. Thus, the petitioners are subjected to discrimination at the cost of the persons like respondent Nos.6 to 10. Therefore, the action of the respondent authorities is required to be quashed and set aside and the petitioners herein are required to be given deemed date from the date of when such less qualified persons like respondent Nos.6 to 10 were promoted to the post of Nursing Tutor. 2.4 It is submitted that the petitioners made representation to the respondents ventilating their grievances, i.e. in not promoting the petitioners to the post of Nursing Tutor in Nursing Schools throughout the State of Gujarat. But, till today, the petitioners have not received any reply from the respondents. Therefore, all the petitioners compelled to file this petition. 2.5 Learned Advocate for the petitioner has taken this Court through the documents to establish the educational qualification of the petitioners and submitted that each of the petitioners was having the requisite qualification as required by the notification issued from time to time by the health department of the State. Annexure-B to the petition is notification dated 03.06.1991, by which Recruitment Rules for Nursing Tutor are framed, which provides for the educational qualification of B.Sc. Annexure-B to the petition is notification dated 03.06.1991, by which Recruitment Rules for Nursing Tutor are framed, which provides for the educational qualification of B.Sc. degree nursing with 3 years experience as a staff nurse or post Basic B.Sc. degree in Nursing or Diploma in Nursing Education. 3. As against this, learned AGP on behalf of the respondent authorities has submitted that the main contention on behalf of the petitioners are that the private respondents were not approved by the State Nursing Council nor by the Indian Nursing Council and thus the private respondents who are PHN Diploma Holders from the Public Health Training Institute at Vadodara ought not to have been considered tor promotion to the post of Nursing Tutor. The said submissions are not correct and the answering respondent relied upon paragraph No. 6 of the affidavit in reply dated 02.04.2005, wherein by relying upon the Government Resolution dated 01.09.1981, the State Authority has categorically submitted that by way of the said resolution the institution at Vadodara was established for which the Central Government had given approval to form such institution because of need arose of ANM and in order to give training to AMM there was a need of PHN. 3.1 It is submitted that as the said institution was approved by the State Government and as on the date the student passed out from the said institution also get registration from council and the State Nursing Council can very well confirm this factual aspect and therefore, the State Authority has rightly given promotion to the private respondents who are PHN Diploma Holders from the said institution. 3.2 It is submitted that the institution at Vadodara was established by the State Government way back in 1981 whereas the Indian Nursing Council is an autonomous body and therefore, it is apparent that the record of Institution established by the State Government is not available with the Council. 3.3 It is submitted that both the Nursing Tutor and PHN are different posts and governed by separate rules, wherein at the post of Nursing Tutor direct recruitment is permissible and the petitioner had never demand to appoint as PHH and asked for appointment as Nursing Tutor and therefore, deemed date cannot be given for the post where the appointment was given though direct recruitment. 4. 4. Having heard learned Advocates for the parties and having perused the documents on record, it appears that the petitioners are claiming deemed date of promotion to the post of Nursing Tutor with effect from the year 1995–96 and the sole ground agitated before this Court is that the persons less qualified than the petitioners have been given promotion to the same post ahead of the petitioners. As a matter of fact, the petitioners are also been promoted to the post of Nursing Tutor with effect from 03.04.2000. 5. It appears from the record that the PHN course was initiated and conducted by the State Government. The examinations are conducted and Diploma is awarded by the State Government. The PHN course prescribed by the Indian Nursing Council is designed to prepare a post of Certificate Diploma Nurse to teach, manage Community Health field as well as Hospital Nursing and will be competent nurse teachers, administrators and able to practice at senior level, middle management level, both in Institution as well as Community Field. 6. The qualification of Post Basic B.Sc. (Nursing), Diploma in Nursing Education and Administration, Diploma in Public Health Nursing and such other post Basic Diploma are considered as an additional or advanced courses in nursing and holders of such additional qualification are eligible to be Nursing Tutor as per their specialties. The public Health Nursing Diploma holders are also registered Nurses and registered Midwives as other advanced degree /diploma holders. 7. It appears from the record that the pay scale of the posts of Nursing Tutor Class-3 and PHN Class-3 may be same but both of these posts are different because the Recruitment Rules are different for both the posts. As per Rule-2 of the Nursing Tutor Recruitment Rules-1991, Nursing Tutor Class-3 can be appointed through direct recruitment only. As per Rule-3, the candidate must not be older than 40 years of age and he/she must possess the degree of B.Sc. in Nursing and he/she must have experience of three years as staff nurse in the hospital or he/she must have the degree of post basic B.Sc. in nursing or he/she must have diploma in nursing education, then such candidate is eligible for the post of Nursing Tutor Class-3. Thus, according to these Rules, Nursing Tutor Class-3 can be appointed through direct recruitment only. in nursing or he/she must have diploma in nursing education, then such candidate is eligible for the post of Nursing Tutor Class-3. Thus, according to these Rules, Nursing Tutor Class-3 can be appointed through direct recruitment only. Similarly, as per the recruitment rules of Public Health Nurses i.e. PHN Class-3, dated 02/02/1984, PHN Class-3 can be appointed through direct recruitment only and the candidate must not be older than 40 years of age and he/she must be qualified midwife and he/she must possess the certificate of PHN or the degree of B.Sc. Nursing recognized by Indian Nursing Council, then only such candidate is eligible. Thus, as per the recruitment rules of PHN Class-3, dated 02.02.1984, the provision was there to appoint PHN Class-3 through direct recruitment only. However, the said Rules were amended on 12.09.1984 and the provision was added in Rule-2 that PHN Class-3 can be appointed through promotion too. Considering the same, PHN can be appointed through promotion but Nursing Tutor can be appointed through direct appointment only. It is a separate matter that if a person performing duty as staff nurse has passed B.Sc. Nursing then he/she can be appointed but it can not be considered as promotion. 8. From the record available with the Court, the Court is unable to conclude that the appointment of the private respondents it is not in accordance with the provisions of law. In fact, from the pleadings of the respondents, they have justified the appointment of private respondents, which is in accordance with their Recruitment Rules and such respondents are also having the necessary qualifications. Therefore, the argument of learned Advocate for the petitioners for deemed date on the basis of lesser qualified respondents being promoted, is not accepted. Another reason for not accepting the case of the petitioners for deemed date of promotion, is the categoric stand of the respondents that the appointment of the petitioners to the post of Nursing Tutor was by way of direct recruitment. Another reason for not accepting the case of the petitioners for deemed date of promotion, is the categoric stand of the respondents that the appointment of the petitioners to the post of Nursing Tutor was by way of direct recruitment. This is very much evident from Annexure-A itself, where in order dated 05.04.2003, the names of the petitioners have appeared as being appointed as Nursing Tutor on deputation at the request of the petitioners themselves seeking transfer to the newly opened Rajasthan Hospital Nursing School and therefore, the State is justified in taking the stand that the appointment of the petitioners was as a direct recruit and therefore, cannot claim deemed date as compared to the private respondents. Moreover, this stand of the respondent authorities is not controverted by learned Advocate for the petitioners in the pleadings or during course of arguments. 9. In view of the aforesaid reasoning, the petitioners have failed to make out a case for deemed date of promotion and to unsettled the settled position of seniority and promotion after the position in seniority has crystallized long back and the petitioners have also retired long back after attaining the age of superannuation. 10. The petition therefor deserves to be and is hereby dismissed. Rule is discharged. Ad interim relief granted earlier stands vacated.