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2023 DIGILAW 471 (AP)

Merugu Manoj Babu v. State of Andhra Pradesh

2023-02-28

D.V.S.S.SOMAYAJULU, PRASHANT KUMAR MISHRA

body2023
JUDGMENT PRASHANT KUMAR MISHRA, J. - Petitioners, who are registered as Public Health Nurses, have preferred this writ petition seeking relief of quashment of G.O.Ms.No.101, Health, Medical & Family Welfare (E1) Department dtd. 4/4/1997 - the Andhra Pradesh College of Nursing Service Rules - fixing 100% reservation for Female Nurses and filling up the posts of Professors, Assistant Professors, Lecturers and Tutors for Government Medical College without conducting any direct recruitment and the consequential Notifications, i.e. G.O.Ms.No.74, Health, Medical & Family Welfare (E1) Department, G.O.Ms.No.75, Health, Medical & Family Welfare (E1) Department and G.O.Ms.No.76, Health, Medical & Family Welfare (E1) Department, all dtd. 7/7/2020, as illegal, arbitrary, unjustified, unconstitutional and contrary to Articles 14 and 16 of the Constitution of India and the judgment of the Hon'ble Supreme Court in Chebrolu Leela Prasad Rao v. The State of Andhra Pradesh dtd. 22/4/2020 in Civil Appeal No.3609 of 2022, seeking further direction to the respondentsauthorities to fill up the posts of Professors, Assistant Professors, Lecturers and Tutors in the Government Nursing College, through direct recruitment. 2. In the course of arguments, challenge was confined to filling up of the posts of Tutors only by 100% promotion from Staff Nurses as mentioned in G.O.Ms.No.74, Health, Medical & Family Welfare (E1) Department dtd. 7/7/2020. 3. In the affidavit filed in support of the writ petition, it is stated the petitioner No.5 is eligible for the post of Tutor and petitioners 1 to 4 are eligible for the posts of Professor, Assistant Professor and Lecturers; however, respondents are filling up 193 vacancies through promotion only without conducting direct recruitment; thereby, not providing opportunity to the petitioners and depriving their right of employment. 4. It is contended by the learned counsel for the petitioners that as per Rule 4 of the Andhra Pradesh State and Subordinate Service Rules, 1996, method of appointment to any service, class or category shall be by one or more of the methods indicated below as may be specified in the Special Rules applicable to the relevant post:- 1. Direct Recruitment 2. Recruitment / Appointment by transfer 3. Promotion or 4. Direct Recruitment 2. Recruitment / Appointment by transfer 3. Promotion or 4. Contract / Agreement / Re-employment, further providing that where the normal method of recruitment to any service, class or category includes direct recruitment, the proportion in which the special rules may require vacancies to be filled by persons recruited direct shall be applicable to all substantive vacancies and direct recruitment shall be made only against the substantive vacancies and that in respect of posts in the Subordinate Service, the percentage earmarked for direct recruitment should not fall short of 30%. 5. It is further contended that at the time of constituting Andhra Pradesh College of Nursing Service Rules, there was shortage of qualified Nurses due to which, most of the Kerala Nurses are working in Andhra Pradesh, but now due to availability of more avenues and opportunities, Male Nurses course was also introduced in the year 2005 by the Government of Andhra Pradesh and Male Nurses are also providing their services with great satisfaction; therefore, there is a necessity to change and amend the Andhra Pradesh College of Nursing Service Rules, to provide opportunity to Male Nurses. However, even today, the 1st respondent is following 100% reservation in favour of Female Nurses and that there is also a necessity to conduct direct recruitment for the posts of Professors, Assistant Professors, Lecturers and Tutors. It is argued that there is violation of Articles 14 and 16 of the Constitution of India by the respondents. 6. On behalf of the official respondents, the 2nd respondent, Director of Medical Education, has filed counter-affidavit submitting that the post of Tutor is a promotional post, feeder category of which is (i) appointment from the category of Head Nurse or (ii) Promotion of Staff Nurses if no qualified Head Nurses are available or (iii) by Direct Recruitment. The said post is filled up as per the ad hoc rules vide G.O.Ms.No.2035/Health, Housing and Municipal Administration Department dtd. 27/9/1965, i.e. Andhra Pradesh Nursing Service Rules. As per the Indian Nursing Council norms, qualification for the post of Tutor has been mentioned as Staff Nurse who possesses B.Sc. (N)/M.Sc. (N)/ Post-B.Sc. (N) with one year experience; thus, the petitioners cannot claim for the promotional posts of Tutor/Nursing Tutor Gr.II as there is a need of possessing B.Sc. (N)/M.Sc. (N)/ Post-B.Sc. (N) with two years experience in teaching line vide G.O.Ms.No.175, GAD (Services) dtd. 27/11/2017. 7. (N)/M.Sc. (N)/ Post-B.Sc. (N) with one year experience; thus, the petitioners cannot claim for the promotional posts of Tutor/Nursing Tutor Gr.II as there is a need of possessing B.Sc. (N)/M.Sc. (N)/ Post-B.Sc. (N) with two years experience in teaching line vide G.O.Ms.No.175, GAD (Services) dtd. 27/11/2017. 7. It is significant to note that the petitioners have not challenged the constitutional validity of the Andhra Pradesh Nursing Service Rules, vide G.O.Ms.No.2035 dtd. 27/9/1965 framed under Article 309 of the Constitution of India. Without challenging the said Rules, petitioners cannot seek relief for declaration that the Notifications bearing G.O.Ms.No.74, Health, Medical & Family Welfare (E1) Department, G.O.Ms.No.75, Health, Medical & Family Welfare (E1) Department and G.O.Ms.No.76, Health, Medical & Family Welfare (E1) Department, all dtd. 7/7/2020, are illegal and arbitrary. Even otherwise, as per the counter-affidavit, petitioners are not entitled for the post of Tutor/Nursing Tutor as they do not possess the qualification of B.Sc. (N)/M.Sc. (N)/ PostB.Sc. (N) with two years experience in teaching line. 8. It is settled law that a person who is not eligible for a post as per the existing recruitment rules, is not entitled to challenge the recruitment notification. For this proposition, we may profitably refer to the judgment of the Hon'ble Supreme Court in Pramod Kumar v. U.P. Secondary Education Services Commission and others - (2008) 7 SCC 153 , wherein it is observed that when the petitioner prefers a writ petition for issuance of a writ of mandamus, he must establish existence of a legal right in himself and a corresponding legal duty in the State. If he did not possess the requisite qualification to hold a post, he could not have any legal right to continue. 9. Referring to the said judgment, the Hon'ble Supreme Court in its subsequent judgment, in State of Gujarat and others v. Arvindkumar T. Tiwari and another - (2012) 9 SCC 545 , held that a person who does not possess the requisite qualification cannot even apply for recruitment for the reason that his appointment would be contrary to the statutory rules, and would therefore, be void in law. Lacking eligibility for the post cannot be cured at any stage and appointing such a person would amount to serious illegality and not mere irregularity and such a person cannot approach the court for any relief for the reason that he does not have a right which can be enforced through court. 10. In view of the above legal position, since the petitioners are not eligible for the post of Tutor as they lack essential qualification and also in absence of challenge to the Andhra Pradesh Nursing Service Rules, the present writ petition deserves to be, and is hereby, dismissed. No order as to costs. Pending miscellaneous applications, if any, shall stand closed.