Chanda Kushwah And Others vs State Of Madhya Pradesh And Others

Heard on the question and interim relief.

Issue show cause notice to the respondents on payment of process fee within seven days by RAD mode.

1 . Petitioners have approached this Court challenging the validity of the amendment brought by way of gazette notification dated 02.02.2019 as well as educational qualifications prescribed in the advertisement ANMTST-2023 (ANM Training Selection Test) only for girls / women candidate issued by the Madhya Pradesh Professional Examination Board, Bhopal for the appointments to the posts of Multi Purpose Health Worker / Auxiliary Nurse Midwife (ANM) total post 1322 (Post Code-34) direct recruitment (backlog) and Multi Purpose Health Worker / ANM total post 1254 (Post Code-35). The appointments to the above two posts are governed under the provisions of the Madhya Pradesh Public Health and Family Welfare Department (Directorate of Health Services) Class III Nurses Service Recruitment Rules, 1989, in which initially for these two posts the qualifications were that, a candidate should possess a Certificate of 10 Class Examination in 10 plus 2 Education System with subjects of Mathematics, Science and Biology alongwith a certificate of 18 months Training Course of Female Health Worker and registration of Female Health Worker.

2 . B y way of the impugned amendment, gazette notification dated 02.02.2019 the education qualification has been changed to Higher Secondary Examination / 12t h Class Qualification in 10 plus 2 Education System with Biology, Chemistry and Physics subjects alongwith two years training of Female Multi Purpose Worker / ANM and must have a registration of MP Nursing Council, Bhopal.

The petitioners were permitted to appear in the examination and declared qualified but their candidature have been rejected due to non fulfillment of amended qualification.

Petitioners are already working in the Health Department as ANM on contractual basis and they got this opportunity to participate in the selection process, after a lapse of five years, and by that time, in the Rules, qualification for the said post has been changed, by way of amendment. The petitioners are having qualifications under the un-amended Rules, therefore, prima facie, it cannot be said that they do not possess the qualification for the post in question.

It is corrected that the Government has a right to amend, add or delete the qualification for a particular post, but those persons, who are already possessing the qualification in amended rules, cannot be declared ineligible or not qualified for the said post. Now, they cannot go into the past to acquire these qualification in order to get appointment.

Similar issue came up for consideration before the Apex Court in case o f T.R. Kapur & others v. State of Haryana & others reported as 1989 (Suppl.) Supreme Court Cases 584, relevant para 12 is reproduced, as under: -

"12. It is not suggested that the State Government ever moved the Central Government seeking its prior approval to the proposed amendment of Rule 6(b) of the Class I Rules. In that connection, it is necessary to recall that prior to the reorganisation of the States under the States Reorganisation Act, 1956, a conference of the Chief Secretaries of the States that were to be affected was held at Delhi on May 18 and 19, 1956 for the purpose of formulation of the principles upon which integration of services was to be effected. The Government of India by its circular dated May 11, 1957 to all the State Governments stated inter alia that it agreed with the views expressed on behalf of the States' representatives that it would not be appropriate to provide any protection in the matter of departmental promotion. This circular has been interpreted as a prior approval of the Central Government in terms of the proviso to sub-section (7) of Section 115 of the Act in the matter of change of the conditions of service relating to departmental promotions. These considerations however do not arise in the present case. Admittedly, there was no Chief Secretaries Conference as was held prior to the reorganisation of the States under the States Reorganisation Act, 1956. Nor was there any communication issued by the Central Government conveying its previous approval of the changes in service conditions which the States of Punjab and Haryana might make in terms of the proviso to Section 82(6) of the Punjab Reorganisation Act, 1966. Under the States Reorganisation Act, 1956 so also under the Punjab Reorganisation Act, 1966, the power of the Governor to make rules under the proviso to Article 309 of the Constitution had been controlled by the proviso to Section 115(7) of the former Act and Section 82(6) of the latter. It follows that the conditions of service applicable immediately before the appointed day to the case of any person referred to in sub-sections (1) or (2) of Section 82 of the Act could not be varied to his disadvantage except with the previous approval of the Central Government. That being so, the impugned notification issued by the State Government purporting to amend Rule 6(b) of the Class I Rules w.e.f. July 10, 1964 which rendered members of Class II Service who are diploma holders like the petitioners ineligible for promotion to the post of Executive Engineer in Class I Service making a degree in Engineering essential for such promotion, although they satisfied the condition of eligibility of 8 years' experience in that class of service, must be struck down as ultra vires the State Government being contrary to Section 82(6) of the Punjab Reorganisation Act, 1966."

Since this Court is going to consider the constitutional validity of the impugned amendment in number of identical writ petitions and may issue a direction to the respondents to continue with the earlier qualification prescribed under the Rules alongwith with new qualifications for the post of ANM, therefore, at this stage, interim relief is liable to be granted to the petitioners. At the most, the petitioners could be considered for the appointment against the 1233 posts of ANM, which are vacant despite counseling conducted by the respondents. Now the result has been declared and the petitioners have been declared qualified and therefore, they be given an appointment, however, the same shall be subject to final outcome of this petition.

It is made clear that petitioners shall be appointed within the limit of 1322 vacant posts.

Let the matter be listed after three months.

Meanwhile reply be filed by the respondents.