Rajkumari and Others vs State of Rajasthan and Others

M.N. Bhandari, J.—This bunch of writ petitions raises common issues thus were heard and decided by this judgment.

The non-petitioners issued an advertisement dated 26.2.2013 for selection and appointment on the posts of Nurse Gr. II (GNM), Public Health Nurse and Female Health Worker (ANM). The petitioners submitted their applications and they were called for selection. The challenge to the selection is made now on various grounds which were formulated by this court in its order dated 11.12.2015 in CW 15961/2015. The issues so formulated are reproduced hereasunder -

"i) Whether the actual marks of professional qualification would be counted or it would be minimum passing marks required in the subject, if passed after taking attempts.

ii) Whether the experience of the candidates would be counted after issuance of the certificate by Rajasthan Nursing Council though registration may have been transferred to other State where the petitioners have worked and gained experience.

iii) Whether for determination of merit of the post of Nurse Gr.II, the qualification of M.Sc. (Nursing) and B.Sc. (Nursing) can be considered which according to the petitioners is not in consonance to the Scheduled appended to the rules.

iv) The respondents would further clarify as to whether they would permit change of category of those candidates who had initially submitted the application form showing them to be of open category and thereupon submitted the application to change their category to OBC or other reserved category.

v) The affidavit would further indicate as to whether a candidate of TSP would be entitled for consideration against the seat meant for ST because while preparing select list, candidate of TSP has secured higher marks than ST candidate and thereupon despite merit, would be excluded from the selection while giving appointment to lower meritorious candidate of ST category.

vi) The affidavit would also incorporate that whether marks in Senior Secondary would also be taken into consideration for determination of merit. It would then go against Rule 19 of the Rules, as merit required to be prepared based on qualification given in the Schedule. In the schedule, qualification of Senior Secondary has not been shown as an essential qualification but is of GNM.

vii) The other issue is as to whether while determining merit of those candidates who have undertaken Nursing Course from CBSE, their marks of First Year Examination taken by the private institution shall be added or it would be only those marks which have been awarded by CBSE being a body created under the statute and independently taking examination and awarding marks.

viii) It would also be clarified that all those candidates who are within age at the time of contractual or temporary appointment in Government service would be treated to be within age for their selection or not."

Apart from the aforesaid issues, there are some more issues and, accordingly, are formulated as under -

"i) Whether bonus marks can be awarded to a candidate who had undertaken experience of the post outside the State of Rajasthan?

ii) Whether non-petitioners can reduce number of posts then initially determined and the advertised, without an order for reduction of the posts?

iii) Whether while reducing the posts by bifurcating it for National Rural Health Mission (for short ''NRHM'') and for the State service, benefit of bonus marks can be given to those reserved category candidates who had taken benefit while getting appointment against the posts under NRHM and, by virtue of which, now, the posts of open category would be reduced substantially on grant of bonus marks to the reserved category candidates taken experience under NRHM.

iv) Whether the marks for determination of merit would be based on the percentage in the professional as well as academic qualifications or it would be on the actual marks secured by the candidate?"

A detailed additional affidavit has been filed by the non-petitioners on the issues formulated by this court on 11.12.2015 and the issues now formulated have been replied in respective cases. Out of many issues framed by this court, there is no contest on certain issues thus they need to be resolved at the first instance. The other issues would be considered in the later part of the judgment. On the following issues, there is no dispute between the parties, accordingly, to have a clarity for determination of merit as well as select list followed by appointment, non-petitioners may regulate it by the following directions.

"1. For the issue No. 1, non-petitioners have agreed to count actual marks in the professional qualification even if it was passed out by the candidate after taking more than one attempt. The outcome of the aforesaid would be that number of attempts in the professional qualification would not be treated to be supplementary so as to take the minimum passing marks therein for determination of merit. The issue No. 1 stands resolved with the aforesaid.

The issue No. 2 is regarding experience of the candidates. The advertisement specify it to be after a certificate obtained from the Rajasthan Nursing Council. It is agreed by the non-petitioners to consider those candidates who got registration with the Rajasthan Nursing Council and, thereafter, got it transferred to other State to serve and gain experience. To have clarity, only those candidates would be eligible who are having certificate of Rajasthan Nursing Council followed by required experience.

The fourth issue is regarding permission to change of category of those candidates belonging to reserve caste but, some how, submitted application for open category.

The additional affidavit filed by the respondents clarify the issue where such a change has been permitted provided the application for change of the category was submitted pursuant to the order dated 28.10.2015. Accordingly, whoever made request for change of category as per the order dated 28.10.2015, would be permitted to get benefit of reservation provided required certificate has been submitted and candidate qualifies for it. With the aforesaid, issue No. 4 stands resolved.

The issue No. 5 is regarding benefit of reservation to the TSP. The additional affidavit submitted by the non-petitioners shows that after arranging the list for open category followed by list for social reservation i.e. for SC, ST, OBC, SBC etc. the list would be prepared for the TSP and, accordingly, a candidate of TSP finding name in the list of open category or in ST category, would not be counted towards reservation for TSP. Accordingly, they would be extended benefit of reservation meant for them. In the light of the additional affidavit, issue No. 5 stands concluded with the observations made above.

The sixth issue is regarding determination of merit. It is agreed by the parties that let determination of merit be made based on the marks secured in Senior Secondary and in the professional course thus aforesaid issue stands resolved.

The issue No. (iv) framed today has also not been contested by the non-petitioners. They have agreed to determine the merit after taking into consideration percentage of the marks of Senior Secondary and the professional course and, thereafter, taking its average. To clarify, non-petitioners would not take marks into consideration for determination of merit but would be percentage of marks in professional as well as academic qualifications. The average of the two would be taken thereupon for determination of merit. It is for the reason that in different institutions, total marks for professional courses are different i.e. 1500, 1000 or 750. If a candidate has to secure out of total 1500 marks, definitely, his raw marks would be higher than of a candidate passing out the professional course with maximum 750 marks thus those cases would be considered by taking their percentage of marks in the professional and academic courses."

Now, there remain few issues which need to be determined. The first issue for consideration is issue No. 3 framed by this court on 11.12.2015.

Learned counsel submit that determination of merit is required to be as per rule 19 of the Rajasthan Medical & Health Subordinate Service Rules, 1965 (for short ''the Rules of 1965''), as amended in the year 2013. It should be based on the qualification given in the Schedule. Referring to the Schedule for the post of Nurse Gr. II, it is given out that the qualification required therein is GNM thus a candidate having qualification of M.Sc. (Nursing) or B.Sc. (Nursing) should not have been held eligible.

Learned counsel for non-petitioners have contested the issue. It is submitted that GNM is not the name of the qualification but indicate qualification in General Nursing and Midwifery. Therefore, they are considering those candidates to be eligible who are in possession of the qualification of B.Sc. (Nursing) or M.Sc. (Nursing) or the course of Midwifery and similar course. It is looking to the fact that the Schedule appended to the Rules provides not only the qualification for GNM but even equivalent qualification. The candidates have been held eligible who are in possession of the qualification of B.Sc. (Nursing) or M.Sc. (Nursing).

I have considered the submissions and find that the Schedule appended to the Rules provides the qualification of GNM or any other equivalent qualification. The non-petitioners have taken the qualification of M.Sc. (Nursing) or B.Sc. (Nursing) to be equivalent qualification thus those candidates who possess aforesaid qualification are considered eligible. I do not find any illegality in the action of the respondents in taking aforesaid qualification to be equivalent.

The other issue for which controversy remains is issue No. 7, framed on 11.12.2015. There are cases where a candidate has obtained qualification of Nursing by undertaking the course from CBSE. Therein, two years'' course is divided in two parts. For the first year, examinations are conducted by the private school at their own and even marks are assessed by them only. In the second year, marks are given b holding examination by the CBSE i.e. by an independent agency.

Learned counsel for petitioners submit that marks obtained in the first year should not be counted for determination of merit because therein the system of examination and award of marks cannot be trusted much as one and the same agency provide the course followed by the examination and award of marks.

As against the aforesaid argument, learned counsel for non-petitioners submit that when the course is of two years, they cannot divide it in two parts by counting the marks of the examination held by the CBSE alone. In fact, total marks of the course is required to be taken for determination of percentage and there is no illegality in their action.

I have considered the submissions. The required course in Nursing is provided with different duration in different institutions. In some institutions, duration of the course is one and a half year, whereas, in others, course is of two years duration. In view of above, similarity of duration of course does not exist. In majority of institutions where Nursing Course is provided, the examination and award of marks are by independent agency and not by the institution itself other than in CBSE. Looking to the aforesaid, the Ministry of Health & Family Welfare, Government of India; the Indian Nursing Council has revised the eligibility criteria for admission in Auxiliary Nursing and Midwifery (ANM) course. It is now after 10+2 instead of 10th. The CBSE is thus not imparting education in the course of Nursing after the amendment yet there are few candidates who had taken admission prior to the amendment in the Rules.

This court is of the opinion that confidence can be deposed in the course if the marks are awarded by the independent agency after holding examination. If one and the same institution impart education and conduct examination and thereupon assessment of the answer sheet, then it cannot depose required confidence.

In view of above, State of Rajasthan is directed to reconsider the issue so that the assessment of merit may be based by proper assessment of percentage of marks of eligible candidates. As a consequence of the aforesaid, State of Rajasthan would consider as to whether the total marks obtained by the candidates passing out Nursing Course from the CBSE should be taken into consideration or should be of the marks awarded by the CBSE ignoring the marks awarded by the institution for the first year. The consideration would obviously be in the light of the observations made by this court. They would also consider that subsequently even rule had been amended to provide eligibility for appearance in the Nursing Course and, as a consequence of which, CBSE has not continued the Nursing Course further.

The issue No. 1, framed today, is for challenge to award of bonus marks to those who have taken experience from the State other than State of Rajasthan. This court has earlier taken a view that the candidates who have undertaken experience under NRHM in any of the States would be entitled to bonus marks towards experience. It was in the case of "Mahesh Kumar Yadav & ors. versus State of Rajasthan & anr.", SB Civil Writ Petition No. 16545/2013, decided on 18.11.2013 along with other connected writ petitions. In view of above, challenge to the award of bonus marks to a candidate having experience under NRHM from other State cannot be denied thus controversy raised by learned counsel for petitioners in that regard cannot be accepted.

The next controversy is regarding reduction of the posts. It is stated that after issuing advertisement, number of posts have been substantially reduced. In all, 15773 posts of Nurse Gr. II were advertised but it has been reduced and brought to 11259 now though, at one point of time, they were kept at around 8000 and so but then subsequently increased. Learned counsel for petitioners submit that when determination of posts is made as per the Rules of 1965 then after its determination, it cannot be reduced unless an order is passed by the government. The posts have been allocated to NRHM without any order by the government.

The controversy aforesaid has been contested. It is submitted that the government had initially advertised 15773 posts of Nurse Gr. II considering it to be under the Rules of 1965, however, realising that certain posts are under NRHM, corrective measures were taken and, finally, after assessing the current vacancies, recruitment would be made against 11259 vacancies. I do not find any illegality in doing so and, otherwise, it cannot be said to be a case of substantial reduction of posts than what were advertised initially.

It is, no doubt, true that determination of posts is to be made in accordance with the rules but if a mistake has been committed, it is always open for rectification. The respondents have given specific reply for it. They included certain posts meant under NRHM, which is a scheme sponsored by the Central Government thus, realising the mistake, corrective measures were taken. The advertisement dated 26.2.2013 itself makes it clear at the beginning that the government would be having right to reduce or increase the posts. In the light of the aforesaid, I do not find any substance in the argument against reduction of posts. It is more so when law on the issue is well settled. If number of posts are advertised followed by select list, right of appointment cannot be claimed if appointments are not given equal to the posts so advertised. A right is not created due to placement of name in the select list. The judgment of the Supreme Court in the case of "Shankarsan Dash versus Union of India" AIR 1991 page 1612 supports the issue aforesaid.

The other issue for consideration is about additional benefit to the reserve category candidates in view of the fact that earlier the appointments were given to reserve caste candidates in NRHM and after getting the experience, reserve category candidates would be entitled to 15 marks towards bonus. It will diminish the chances of open category candidates in this recruitment.

The argument aforesaid has been made as if in the NRHM, only reserve category candidates were given appointment. The appointments were made from open category candidates also and those candidates would be entitled to the bonus marks at par with reserve category candidates. In view of above, the argument aforesaid cannot be accepted.

The controversy now remains regarding relaxation in age. It is submitted that those who are in government service either on contractual, temporary or permanent basis, are not made entitled to relaxation in age if they were within age at the time of their initial appointment and are working in continuity. For a decision on the issue, reference of rule 10 of the Rules of 1965 is given, which is quoted hereasunder -

"10. Age - (1) A candidate for direct recruitment to a junior post enumerated in Schedule must have attained the age of 22 years and must not have attained the age of 45 years on the first day of January following the last date fixed for the receipt of applications

(2) A candidate for direct recruitment to a Selection of Senior Post enumerated in the Schedule must have attained the age of 45 years on the first day of January following the last date fixed for receipt of Application:

Provided:

(i) that the upper age limit mentioned in sub rule (1) and (2) above, shall be relaxed by 5 years in the case of women candidate and candidates belonging to SC and STs.

(ii) that the upper age limit mentioned in Sub rule (1) and (2) above shall be 50 years in the case of Ex- service Personal and the reservists, namely the defence service personnel who were transferred to the reserve;

(iii) that the upper age limit mentioned in Sub rule (1) and (2) above shall not apply in the case of ex prisoners who had serve under the Government on a substantive basis on any post before conviction;

(iv) that the upper age limit mentioned in Sub rule (1) and (2) above shall be relaxable by a period equal to the term of imprisonment served in the case of ex-prisoner who was not overage before his conviction.

(v) that the persons appointed temporarily [to a post in the service] shall be deemed to be within the age limit, had they been within the age limit when they were initially appointed even though they have crossed the age limit when they appear finally before the commission and shall be allowed upto two chances had they been eligible as such at the time of their initial appointment].

(vi) that the upper age limit mentioned above shall be relaxable by a period equal to the service rendered in the N.C.C. in the case of Cadet instructors and if the resultant age does not exceed the prescribed maximum age limit by more than three years, they shall be deemed to be within the prescribed age limit.

(vii) notwithstanding anything contained contrary in these Rules in the case of persons serving in connecting with the affairs of the State in substantive capacity, the upper age limit shall be 40 years for direct recruitment to posts filled in by competitive examinations or in case of posts filled in through the Commission by interview.

(viii) that the Released Emergency Commissioned Officers and Short Service Commissioned Officers after release from the Army shall be deemed to be within the age-limit even though they have crossed the age limit when they appear before the Commission had they been eligible as such at the time of their joining the Commission in the Army.]

(ix) that there shall be no age limit in the case of widows and divorced women.

Explanation. - That in the case of widow, she will have to furnish a certificate of death of her husband from the Competent Authority and in case of divorce, she will have to furnish the proof of divorce.]

(x) the upper age limit mentioned above shall be relaxed by 5 years in the case of candidates belonging to the Other Backward Classes.]"

Proviso (v) to sub-rule (2) of rule 10 applies to those who were appointed temporarily and were within age but an amendment has been made by the government vide Notification dated 6.2.2013. A proviso has been added under rule 10, which reads as under -

"2. Amendment of rule 10.--In rule 10 of the said rules, -

(i) for the existing expression "attained the age of 16 years", the expression "attained the age of 18 years" shall be substituted.

(ii) After the existing last proviso to rule 10 of the said rules the following new proviso shall be added, namely:--

"The upper age limit mentioned above shall be relaxed, for the posts which are not in the purview of commission, by a period equal to service rendered on the similar post in any capacity, subject to maximum of 5 years, under the Government, Chief Minister BPL Jeevan Raksha Kosh, National Rural Health Mission, Medi Care Relief Society, AIDS Control Society, Institutes under cooperative Department or Sahakari Upbhokta Bhandar."

As per the new proviso, maximum relaxation in age is by a period equal to service rendered on a particular post under the government and various other schemes in any capacity subject to maximum of 5 years. The post in question is not in the purview of the commission thus would be governed by the new proviso. The relaxation given under the rule 10 would be subject to proviso and, accordingly, relaxation to those who are already in service would be by the maximum period given in the amended provision thus the claim made by the petitioners for grant of relaxation without considering the proviso so added by amendment in pursuance to the Notification dated 6.2.2013 cannot be accepted and, otherwise, advertisement also specify it and petitioners submitted their applications and even provisional select list has been prepared without their protest. The challenge is now made when the provisional select list has already been prepared by the non-petitioners. In view of the above, petitioners are now estopped to challenge the criteria for age relaxation after their participation in the selection.

With the above directions and observations, all the writ petitions are disposed of.