Savita Manmiya vs State Of Rajasthan And Ors

The respondent - State issued recruitment notification dated 30.05.2019 and invited applications from all eligible candidates to vie for the post of

Nurse Gr.II.

The petitioner herein having educational qualification of B.Sc. Nursing, is eligible for the post. The clause relating to educational qualification of

advertisement aforesaid reads thus:-

-

Nurse Gr.IInd 1. Senior Secondary or

GNM Course or its its equivalent. equivalent qualification from institute recognized by State Government.

Registered in RNC.

It is not disputed that petitioner's qualification being B.Sc. Nursing is treated at par with the G.N.M. Course and all the candidates having degree of

B.Sc. Nursing are being offered appointment on the post of Nurse Gr.II

The petitioner submitted her application form and claimed 20 bonus marks on the basis of the experience certificate dated 24.06.2020, which inter

alia evinced that the petitioner has worked as Nursing Tutor in G.N.M. Training Center, General Hospital, Chittorgarh from 01.09.2015 to 31.05.2018.

When the petitioner appeared for document verification, the respondents denied her bonus marks as claimed, because the petitioner has not worked

as Nurse Gr.II and has rather worked as Nursing Tutor cum Clinical Instructor.

Being aggrieved with the action of the respondents in denying her the bonus marks, the petitioner has preferred the present writ petition.

Mr. Bishnoi, learned counsel for the petitioner, invited Court's attention towards the petitioner's appointment order dated 30.05.2016 and pointed out

that petitioner has been posted as Nursing Tutor in GNM Training Centre, Shri Sanwaliyaji Government Hospital and has discharged her duties as

such, for the relevant period.

Learned counsel also took the Court through the resolution approved by the General Body of the Nursing Council in relation to the Nursing

Education and Services and pointed out that the job responsibilities of a Nursing Tutor is dual - she has to give instructions/training while also

discharging nursing duties.

Learned counsel read the additional affidavit dated 04.01.2021 filed by the petitioner and underscored that the petitioner, while conducting clinical

supervision, has also conducted direct patient care in ward/unit of the hospital and had taken instructions from the doctors with regard to treatment of

the patients and also handled medico-legal cases in the medical ward.

Attention of the Court was also drawn towards various office orders, which the petitioner has placed on record to establish that the petitioner was

assigned duties as Nursing Tutor cum Clinical Supervisor in the hospital itself.

Having said this, learned counsel read the relevant clause (Clause No.7) of the advertisement and submitted that the requirement for grant of

bonus marks is, that a candidate must have discharged similar work in the enumerated schemes of the Government or under the Government Hospital.

He argued that may be, technically the petitioner is/was called as 'Nursing Tutor' or 'Clinical Supervisor' but her job responsibilities were exactly akin

to that of a Nurse Gr.II and thus, the petitioner cannot be denied bonus marks for the experience she has gained while working in a Nursing Training

Centre attached with a Government Hospital.

Mr. Bishnoi, learned counsel for the petitioner, relied upon a judgment dated 08.09.2020, rendered by this Court in the case of Vidhya Kumari

Tailor Vs. State & Ors. [S.B. Civil Writ Petition No.4974/2020] and pointed out that while dealing with the case of Female Health Worker, this Court

has compared the job responsibilities of Female Health Worker and Lady Health Visitor and concluded that the petitioners therein, namely, Lady

Health Visitors, were entitled for claiming bonus marks for the post of Female Health Worker. On the basis of judgment of Vidhya Kumari Tailor

(supra), learned counsel argued that a comparison between the job responsibilities of Nursing Tutor cum Clinical Instructor vis- a-vis Nurse Gr.II,

leaves no manner of doubt that the petitioner's job responsibilities were almost similar with additional responsibilities of imparting training.

Mr. K.S. Rajpurohit, learned AAG, on the other end, opposed petitioner's claim for grant of bonus marks and argued that petitioner's job

responsibilities were essentially that of supervision. He emphasized that the documents placed on record do not show that petitioner has worked as a

Nurse Gr.II. According to the State, the petitioner's role was supervisory and thus, she cannot be said to have discharged similar responsibilities, what

a Nurse Gr.II is required to discharge.

It was also argued by the learned Addl. Advocate General that grant of bonus marks cannot be claimed as a matter of right and the same has to

specifically flow from terms and conditions of the advertisement or the relevant rules.

It was further argued that the respondents' action cannot be said to be arbitrary inasmuch as, they have adopted uniform yardsticks and bonus

marks have not been provided to any of the candidates, who have discharged duties as Nursing Tutor cum Clinical Instructor. In a bid to buttress this

argument, learned Addl. Advocate General relied upon the judgment dated 05.08.2019 of this Court rendered in case of Ratan Singh & Ors. Vs. State

of Rajasthan & Ors. [D.B. Civil Writ Petition No.13131/2018].

Heard.

Right of claiming bonus marks emanates from Rule 19 of the Medical and Health Subordinate Service Rules, 1965 (hereafter, ""Rules of 1965"").

Clause No.7 of the advertisement, is somewhat reproduction of Rule 19, which reads as under:-

:- 1965

19

, ,

, ,

, , (SIHFW )

’

‘ ’

*(emphasis supplied)

(ii) ,

, , , /.. ./ ◌ ◌/ ..

/, , , /, , ,

, ,

, ,

/ /

(iii)

,

(iv)

/

(v) ,

:-

(i) ,

/

(ii) , , ,

,

A look at the provision aforesaid clearly shows that it provides for grant of bonus marks to candidates having discharged similar work to a Nurse

Gr.II.

So far as petitioner's experience under Government Hospital is concerned, that is not in dispute. But, the bone of contention between the rival

parties is, as to whether petitioner having worked as Nursing Tutor cum Clinical Instructor can be said to have done similar work of a Nurse Gr.II or

in other words, the duties which she has discharged can be said to be similar to the duties and responsibilities which a Nurse Gr.II is required to

undertake.

For the purpose aforesaid, the guidelines issued by Nursing Council on 04.04.2019 become significant. It will not be out of place to reproduce

responsibilities of a Nursing Tutor, which reads thus:-

Tutor/Senior Nursing Officer:

Eligibility : Msc with 1 year experience or B.Sc/P.B.B.Sc. Nursing with minimum 2 years of experience or Diploma with 6 years experience or Post

basic diploma in a speciality with minimum 5 years after GNM clinical experience.

Direct patient care:

● Ensures proper admission and discharge procedures for her patients.

● Assists in the direct care of the patient as an when reuired.

● Implements doctor's instructions concerning patient treatment, investigations and any other procedures.

● Co-ordinates patient care with other departments.

● See that the new admissions are seen by the treating doctors at the earliest.

● Ensures entry of above activities electronically as per the institute rules/protocols Supervision and administration:

● Ensures safe and clean environment for the ward.

● Makes duty and work assignments.

● Maintains good public relations in her ward.

● Handle medico-legal cases in the ward as per the existing rules/protocols. Educational functions:

● Gives incidental teaching to patients, relatives, staff nurses, students and the house keeping staaff.

● Assists the clinical instructor in the evaluation of students.

It is noteworthy that in the said guidelines, the Indian Nursing Council has provided that B.Sc. Charge nurses/SNOs can have dual appointment

and dual responsibilities. Relevant clause reads thus:-

BSc charge nurses/SNOs and Bsc staff nurses with required qualification can be offered dual appointment to manage ward/unit as well as teaching

students in the clinical area.

As against this, job responsibilities of a Staff Nurse have been placed at Annex.R/1. A perusal of Annex.R/1 reveals that even a staff nurse can

have responsibilities of teaching also apart from taking routine health care. Upon comparison of the job responsibilities of the Nursing Tutor cum

Clinical Instructor vis-a- vis job responsibilities of Nurse Gr.II, this Court finds that a Nursing Tutor discharges or is supposed to discharge most of

rather almost all the responsibilities of a Nurse Gr.II.

The petitioner has filed a categorical affidavit, inter alia, stating thus:-

While conducting clinical supervision the petitioner also conducted the direct patient care in the ward/unit of the hospital. During this the petitioner

conducted the function of assistance in the direct care of the patient and also implemented the doctors instructions with regard to treatment of the

patient and also handle medico legal cases in the ward as per the requirement. It is also submitted that in case of teaching the petitioner teaching to

staff nurses and students. It is further submitted that the nurses who are having qualification of B.Sc. can be given dual appointment to teach students

decide their clinical duties. In case of petitioner, she is having qualification of B.Sc. Nursing and looking to her ability she was given contractual

appointment for conducting dual job while working on the post of Nursing Tutor cum Clinical Instructor. It is further submitted that the work of the

petitioner is exactly similar to the work of Staff Nurse and in additional to the work of Staff Nurse petitioner also conducting the job of supervision and

teaching. It is also submitted that the post of the Nursing Tutor is also fill up from the Staff Nurse/Nurse Grade-II as per the provisions of the

Rajasthan Medical and Health Subordinate Service Rules from the candidates who are having qualification of B.Sc. Nursing.

Upon perusal of the averments aforesaid, this Court is of the firm view that petitioner's job responsibilities, though supervisory in nature, cannot be

held to be any different than that of a Nurse Gr.II. May be, the petitioner is instructing the trainee nurses, and in that process, invariably, she is

supposed to go to the hospital and give instructions and in field training to the under-trainee nurses. That cannot be done without a Nursing Instructor

herself carrying out patient care and other clinical services, which a Nurse Gr.II is otherwise required to perform.

Case of Nursing Tutor can well be compared with an Assistant Professor in Medical Colleges. An Assistant Professor or a Professor in Medical

Colleges, who discharges responsibilities of teaching cannot be said to be teacher alone. As a doctor he teaches in medical colleges and at the same

time he discharges duties in the associated hospitals - diagnosing and treating patient while also guiding medical students or resident doctors. So is the

case of a Nursing Tutor. She may well give instructions to under- trainee or other nurses, but in such process, she herself may be required to do

nursing duties. It may be noted that in professional courses, giving instructions cannot be academic only, unless the Guide/Instructor or Nursing

Supervisor himself/herself discharges the professional duties.

Upon perusal of the certificates of job responsibilities placed by the petitioner along with the additional affidavit, this Court finds that petitioner has

been assigned duties in a Government Hospital. Such being the position, stand of the respondent-State that petitioner was a Nursing Tutor cum Clinical

Supervisor and thus, not entitled for bonus marks, is in a way writing off the work she has done, ignoring the fact that the petitioner has discharged

similar work or duties, which a Nurse Gr.II is required to discharge.

In considered opinion of this Court, Rule 19 of the Rules of 1965, which deals with grant of bonus marks, is ameliorative in nature. If a candidate

has worked under a scheme of Government and has performed identical or similar duties, which are required to be performed by the person manning

the post which is advertised, the State cannot adopt a telescopic or technical approach to deny grant of bonus marks to such candidate.

State cannot gainsay the fact that petitioner has discharged responsibilities of a Nurse Gr.II, may be, to a small extent at least while giving on field

training or giving instructions or at least in emergent situation or in absence of a nurse. If that be so, the respondents cannot deny grant of bonus marks

to a Nursing Tutor, as the advertisement uses the expression 'Expression of similar work' and not work of Nurse Gr.II per se. In the face of words

'similar work', the quantum, percentage or extent of work becomes irrelevant, particularly in the given factual backdrop.

That apart, grant of bonus marks is an impetus provided to contractual employees, who have worked under the State Government or under the

enumerated schemes of the Government and thus, denying the petitioner bonus marks on a rather technical ground that petitioner's job responsibilities

are not that of Nurse Gr.II, is iniquitous.

The writ petition is, therefore, allowed. The respondents are directed to grant bonus marks to the petitioner on the basis of her experience as

Nursing Tutor cum Clinical Instructor. The respondents are directed to award requisite bonus marks to the petitioner, obviously after verifying the

certificates under consideration and accord her appointment, if she is meritorious and otherwise eligible. Needful be done within a period of six weeks

from today.

The petitioner shall appear before the respondent No.3 on 01.03.2021 along with her original certificate(s) and other relevant documents. The

respondent No.3 or his nominee shall verify the same and do the needful, as directed above.

The stay application also stands disposed of accordingly.