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Judgment
S.R.Brahmbhatt, J
Heard learned AGP for the respondent-State as well as learned counsel for respondent no.4. None is present for the appellant.
The present appeal is taken out under Clause 15 of the Letters Patent, inter alia, challenging the order and judgment dated 9.6.2014, whereby relying upon the observations of the Supreme Court in the case of Rajasthan Pradesh Vaidya Samiti, the matter is dismissed as there cannot be any right to practice in medicine or para-medicine, if the requisite qualification is lacking.
The facts leading to the filing of this appeal, as can be gathered from the order impugned deserves to be set out as under:-
"The case of the petitioners is that the qualifications required by the advertisement at Annexure-A for the posts of Female Health Worker are (1) candidate must have passed SSC or its equivalent examination and (2) candidate must have passed examination of Female Health Worker Basic Training Course recognized by the Government and registered with Nursing Council. All of them have passed SSC examination and thus acquired first qualification. As regards second qualification of passing Female Health Worker Basic Training Course, they have averred that they have passed examination of Diploma in Female Health Worker from Mahatma Gandhi University, Meghalaya and as per the circular dated 16.1.1978 of the General Administration Department of the State Government, such diploma course from Mahatma Gandhi University could be said to be recognized for the purpose of employment in State of Gujarat. They have annexed mark-sheets and Diploma Certificates issued by Mahatma Gandhi University with the petitions. It is their say that they satisfy the educational qualifications required by the advertisement and the Recruitment Rules for the post of Female Health Worker. They have averred that the Recruitment Rules do not require registration of the course of Female Health Worker with Gujarat Nursing Council, however the respondents have made such provision for registration in the advertisement and on such ground, the petitioners are not permitted to appear in the interview for the post of Female Health Worker though the petitioners are well qualified for the post of Female Health Worker. The petitioners have further averred that the Female Health Worker course is not being conducted in the State of Gujarat after 2008 and as information given to them under the Right to Information Act, the registration of Female Health Worker is not done by Gujarat Nursing Council. The petitioners have contended that the requirement of registration of Female Health Worker course with Gujarat Nursing Council provided in the advertisement and insisted upon by the respondents as pre-condition to appear in the interview for the post of Female Health Worker is in violation of Article 14 of the Constitution of India and contrary to the Recruitment Rules for the said post."
Relevant observations made by learned Single Judge while passing the impugned judgment are as under:-
"17. At this stage, the provisions made in Sections 12,13 and 18 of the Gujarat Nurses, Midwifes and Health Visitors Act, 1968 ('the Gujarat Act' for short) need to be referred. They read as under:-
"12. Maintenance of register :- The Council shall prepare and maintain a register of nurses, midwives and health visitors, in such form containing such particulars and divided into such parts and sections as may be prescribed.
Persons entitled to registration :- (1) Any person who has undergone such courses of training and has passed such examinations and who fulfills such other conditions as may be prescribed or any person who possesses any of the qualifications included in the Sch. to the Indian Nursing Council Act, 1947, (XL VII of 1947), shall, subject to any conditions laid down by or under the said Act, at any time on an application made in the prescribed form to the Registrar and on payment of the prescribed fee and on presentation of his degree, diploma or certificate, be entitled to have his name entered in the register.
(2) Notwithstanding anything contained in sub-section (1) the name of every person which was entered in the register duly maintained under the Bombay Nurses, Midwives and Health Visitors Act, 1954, (Bom XIV of 1954), and in force immediately before the coming into force of this Part in the Bombay area of the State of Gujarat shall, without further fee or charge be entered in the register to be prepared and maintained under this Act and continue thereon for the period for which such registration was made or renewed, as the case may be, unless removed earlier under the provisions of this Act.
(3)(i) Any person who desires to be registered temporarily under clause (b) of sub-section (2) of section 11 of the Indian Nursing Council Act, 1947, (XLV III of 1947) shall make an application in the prescribed form to the Registrar and shall pay the prescribed fee. On receipt of such application the Registrar shall seek the approval of the President of the Council constituted under the said Act for temporary enrolment of the applicant in the register.
(ii) Every person whose name is entered in the register under clause (i) shall be given a certificate of temporary registration in the prescribed form. Such certificate shall remain in force for such period as may be specified therein.
(iii) Any person who possesses temporary registration under clause (i) shall not be eligible to stand as a candidate or to vote at any election held under this Act.
Persons not registered or on the list not to practice as nurse etc :- (1) No person other than a person registered under this Act or a person whose name is entered in the list shall practice or hold himself out, whether directly or by implication, as practising habitually or for personal gain as a nurse, midwife or health visitor.
(2) Any person who acts in contravention of the provisions of subsection (1) shall, on conviction, be punished with which may extend to one hundred rupees for the first offence, to two hundred rupees for the second offence and to three hundred rupees for any subsequent offence.
From Section 13 of the Gujarat Act, it clearly appears that a person not holding the recognized qualification is not entitled for registration with State Council. Therefore, it appears that requirement for registration with State Council is provided in the advertisement to ensure that the candidates with recognized qualification can be considered eligible for the posts. Therefore, the Court is of the view that the requirement provided for registration of qualification of Female Health Workers Basic Training course with the State Council in the advertisement is neither unreasonable or contrary to the Recruitment Rules.
Learned senior advocate Mr. Dave, however, relied on the decision of the Hon'ble Supreme Court in the case of Unique Butyle Bube Industries (supra), so as to urge that when statutory Recruitment Rules do not provide for registration of Female Health Worker, by judicial interpretation, no such requirement of registration can be read in and there is no question of supplying Casus Omissus as Rules are possible to be clearly interpreted. Reliance placed on this judgment is misconceived as there is no question of interpreting the Statute and supplying Casus Omissus, as what is considered is whether the petitioners could be said to be holding recognized qualification for the posts to be filled in as per the advertisement. Mr. Dave also relied on the decision of the Hon'ble Supreme Court in the case of Jagdish Prasad Sharma (supra), so as to urge that there is no question of complying with Regulation of UGC when the recruitment to the post is governed by the statutory Rules. This judgment will have no application to the facts of the case as the questions considered are whether in the context of INC Act, the Gujarat Act read with Recruitment Rules, the petitioners possess recognized qualification.
Learned advocate Mr. Yajnik, however, relied on the decision of the Hon'ble Supreme Court in the case of Diamond & Gem Development Corporation Limited (supra), so as to point out that the mandamus cannot be issued to create or establish right. It can only be issued to enforce legal right which is already established. Such writ is equitable in nature and its issuance is governed by equitable principles. In view of the principles settled by the Supreme Court in the said decision, since the petitioners have failed to establish that they hold qualification recognized for the posts advertised, at their instance, no mandamus could be issued to permit them to appear in interview for the posts of Female Health Worker.
In the case of Rajasthan Pradesh Vaidya Samiti, Sardarshahar (supra), relied on by learned advocate Mr. Yajnik, the Hon'ble Supreme Court has held and observed in para 47 and 48 as under :-
"47. This Court further came to the conclusion that unless the person possesses the qualification as prescribed in Schedules II, III and IV of the Act, 1970, he cannot claim any right to practice in medical science and mere registration in any State register is of no consequence.
In view of the above, it is evident that right to practice under Article 19(1)(g) of the Constitution is not absolute. By virtue of the provisions of Clause (6) to Article 19 reasonable restrictions can be imposed. The Court has a duty to strike a balance between the right of a Vaidya to practice, particularly, when he does not possess the requisite qualification and the right of a "little Indian" guaranteed under Article 21 of the Constitution which includes the protection and safeguarding the health and life of a public at large from mal-medical treatment. An unqualified, unregistered and unauthorized medical practitioner possessing no valid qualification, degree or diploma cannot be permitted to exploit the poor Indians on the basis of a certificate granted by an institution without any enrolment of students or imparting any education or having any affiliation or recognition and that too without knowing the basic qualification of the candidates."
The Court is of the view that the said proposition of law as narrated in paragraph 21 cannot be disputed. Above observations have not been shown to be in any manner deserving to be interfered with as the findings are impeccable and, therefore, we are inclined to dispose of this appeal as no case is made out for interference. Hence, dismissed.