SUMAN DEVI & Ors. v. STATE OF UTTARAKHAND & Ors.

From the Judgment and Order dated 07.07.2017 of the High Court of Uttarakhand at Nainital in Special Appeal No. 255 of 2017, Special Appeal No. 143 of 2017, Special Appeal No. 201 of 2017 and Civil Writ Petition No. 1481 of 2017. A B C D E F G H 302 SUPREME COURT REPORTS [2021] 3 S.C.R. A With Civil Appeal Nos. 558, 559, 560, 561, 562-563 of 2021. Jatinder Kumar Sethi, Dy. A.G., Ms. V. Mohana, Shekhar Naphade, Sr. Advs., Mehul M. Gupta, Ms. S Lakshmi Aiyer, Mohd. Farhan Khan, Ms. Farah Hashmi, Vikrant Yadav, Ashutosh Kumar Sharma, Sudarshan Singh Rawat, Jaswant Singh Rawat, Ms. Rachna Gandhi, M C Dhingra, Raghvendra Shukla, Aviral Saxena, Gaurav Dhingra, R. P. Gupta, Ravindra S. Garia, Abhay Kumar, Siddharth Iyer, Javedur Rahman, Raveendra Bisht, Shivendra Singh, VSR Krishna, Arpit Shukla, M. C. Pant, Shashank Singh, Mrs. D. Bharathi Reddy, Ytharth Kumar, T. Mahipal, Manan Verma, Advs. for the appearing parties. The Judgment of the Court was delivered by S. RAVINDRA BHAT, J. Brief Facts

#1. With consent of counsel for parties, the appeals were heard finally.

#2. The appellants, who are registered Auxiliary Nurse Midwives (hereafter “ANM”), complain that the Uttarakhand High Court’s ruling1 regarding their ineligibility for appointment to the cadre of Family Health Worker (hereafter “FHW”), Auxiliary Nurse-Midwives (hereafter “ANM”) and Health Supervisor (hereafter “HS”) is erroneous. The Government of Uttarakhand had advertised on 15.03.2016, 440 vacancies of FHW (Female) and ANM, relative to several years’ backlog. The advertisements were challenged as being contrary to the recruitment rules; the challenge was upheld by a single judge (who allowed the writ petitions) and whose decision was affirmed by the impugned judgment.

#3. The erstwhile United Provinces enacted a law, brought into force w.e.f. 25.08.1934 (hereafter called “the UP Law”).2 The object of the UP Law was to provide for registration of nursing profession. The UP Law was later amended, and a definition of Auxiliary Nurse- Midwife was inserted. 1 By judgment dated 7th July, 2017 in Special Appeal No. 156, 143, 150/2017 and other connected appeals and writ petitions 2 United Provinces Nurses, Midwives, Assistant Midwives (Auxiliary Nurse-Midwives and Health Visitors) Registration Act, 1934. B C D E F G H SUMAN DEVI & ORS. v. STATE OF UTTARAKHAND AND ORS. [S. RAVINDRA BHAT, J.] 303

#4. With effect from 31.12.1947, the Indian Nursing Council Act, 1947 (hereafter called “the INC Act”) was brought into force. Its objective was to set up a Central Council (hereafter “the council”) to establish a uniform standard of training for nurses, midwives and health visitors. Section 16 of the INC Act enables the council to prescribe curricula for training and conditions for admission; Section 10 of the Act enacted that qualifications included in Part I of the Schedule shall be recognized qualifications, and the qualifications included in Part II of the Schedule shall be recognized higher qualifications. The text of the provision is extracted in the footnote below.3 Section 11 stated that 3“10. Recognition of qualifications.––(1) For the purposes of this Act, the qualifications included in 1 of the Schedule shall be recognised qualifications, and the qualifications included in Part II of the Schedule shall be recognised higher qualifications. (2) Any authority within the States which, being recognised by the State Government in consultation with the State Council, if any, for the purpose of granting any qualification, grants a qualification in general nursing, midwifery, auxiliary nursing- midwifery, health visiting or public health nursing, not included in the Schedule may apply to the Council to have such qualification recognised, and the Council may declare that such qualification, or such qualification only when granted after a specified date, shall be a recognised qualification for the purposes of this Act. (3) The Council may enter into negotiations with any authority in any territory of India to which this Act does not extend or foreign country which by the law of such territory or country is entrusted with the maintenance of a register of nurses, midwives or health visitors; for the settling of a scheme of reciprocity for the recognition of qualifications, and in pursuance of any such scheme the Council may declare that a qualification granted by any authority in any such territory or country, or such qualification only when granted after a specified date, shall be a recognised qualification for the purposes of this Act; Provided that no declaration shall be made under this sub-section in respect of any qualification unless by the law and practice of the foreign country in which the qualification is granted persons domiciled or originating in India and holding qualifications recognised under this Act are permitted to enter and practice the nursing profession in that country; Provided further that–– (i) any reciprocal arrangements subsisting at the date of the commencement of this Act between a State Council and any authority outside India for the recognition of qualifications shall, unless the Council decides other wise, continue in force, and (ii) any qualification granted by an authority in a territory of India to which this Act did not extend at the date of its commencement, and recognised on the said date by the State Council of a State to which this Act then extended, shall continue to be a recognised qualification for the purpose of registration in that State. (4) The provisions of sub-sections (2) and (3) and of sections 14 and 15 shall apply mutatis mutandis to the declaration by the Council of a qualific ation granted in respect of post-certificate nursing training as a recognised higher qualifications.” A B C D E F G H 304 SUPREME COURT REPORTS [2021] 3 S.C.R. A B C D E F G H notwithstanding other laws, any recognized qualification was to be sufficient qualification for enrolment in any State register. By Section 11(1) (b), any individual not possessing the recognized qualifications could not be enrolled in any State register as a nurse, midwife, auxiliary nurse- midwife, health supervisor etc. However, an exception was made through the proviso, for the continuation of those who had been registered prior to the coming into force of the enactment. Section 15-A of the INC Act provides for the establishment of an Indian Nurses Register to be maintained by the council. Section 16 which is important for the purpose of this judgment, enables the council to frame regulations; the relevant part is extracted in the footnote below.4

#5. The composite State of Uttar Pradesh framed the Uttar Pradesh Department of Medical Health and Family Welfare Health Worker and Health Supervisor (Male and Female) Service Rules, 1997 (hereafter referred to as the “1997 Rules”) under the proviso to Article 309 of the Constitution of India. Rule 5(1) of the 1997 Rules prescribed that direct recruitment through the Public Service Commission of Health Worker (Male) would be from amongst such male candidates who successfully complete the one-year basic health worker training course conducted by the departmental divisional training centers of the state. Likewise, Rule 5(2) prescribed for direct recruitment through the Public Service Commission from amongst such female candidates who had successfully completed one year and a half year basic mahila health worker training course (including six-month training related to deliveries) conducted by the Uttar Pradesh Nurses and Midwives Council, Lucknow. Such candidates also had to be duly registered under the Uttar Pradesh Nurses and Midwives Council, Lucknow. Rule 8, which is relevant for the purpose of deciding this batch of appeals, reads as follows: “Rule 8. Academic qualification – (i) A candidate for Direct Recruitment to the post of Health Worker (Male) must have 4“16. Power to make regulations. ––(1) The Council may make regulations not inconsistent with this Act generally to carry out the provisions of this Act, and in particular and without prejudice to the generality of the foregoing powers, such regulations may provide for–– (g) prescribing the standard curricula for the training of nurses, midwives and health visitors, for training courses for teachers of nurses, midwives and health visitors, and for training in nursing administration; (h) prescribing the conditions for admission to courses of training as aforesaid; (i) prescribing the standards of examination and other requirements to be satisfied to secure for qualifications recognition under this Act.” SUMAN DEVI & ORS. v. STATE OF UTTARAKHAND AND ORS. [S. RAVINDRA BHAT, J.] 305 successfully completed prescribed training course for Basic Health Worker (Male) conducted by the Departmental Divisional Training Centres (previously known as Regional Health and Family Welfare Training Centres) of the State of Uttar Pradesh. (ii) A candidate for Direct Recruitment to the post of Health Worker (Female) must have successfully completed prescribed training course for Basic Health Worker (Female) conducted by the Uttar Pradesh Nurses and Midwives Council, Lucknow and is also duly registered in the Uttar Pradesh Nurses and Midwives Council, Lucknow. Provided that after enforcement of Uttar Pradesh Medical Health and Family Welfare Department Health Workers and Health Supervisors (Male & Female) Service (First Amendment) rules 1998, it is necessary that for selection for such training the candidate must pass the Intermediate Examination with Science subject of Secondary Education Board, U.P. or any examination equivalent thereto.”

#6. The 1997 Rules were apparently amended in 1998. Rule 14 which was substituted by this amendment reads as follows: “Rule 14 (1) After enforcement of Uttar Pradesh Medical Health and Family Welfare Department Health Workers and Health Supervisors (Male & Female) Service (First Amendment) rules 1998, the process of selection of candidates for training as prescribed under Rule 8, as amended from time to time (Uttar Pradesh Outside the Purview of Public Service Commission) Group ‘C’ shall be made under the provisions provided under Direct Recruitment Rules, 1998. The number of candidates selected for training would be as per number of vacancies. (2) Sub Rule (1) at the time of making selection under Sub Section (1) the provisions of reservation shall be followed as prescribed in Rule 6.” In the aforesaid rules in place of existing Rule 15 mentioned below in Column (1) shall be replaced with the rule mentioned in Column 2.” A B C D E F G H 306 SUPREME COURT REPORTS [2021] 3 S.C.R.

#7. The State of Uttarakhand was formed pursuant to the re- organization of the State of U.P; the new state came into existence on 09.11.2000. The laws in force in the erstwhile composite U.P. State were adopted and continued to remain in force in Uttarakhand. Thus, the 1997 Rules providing for recruitment of Health Worker (Male) and Health Worker (Female), together with the 1998 amendments, continued to remain in force in Uttarakhand. In the meanwhile, on 02.01.2007, by a notification published in the Central Government Gazette, the regulations published by the council under Section 16 of the INC Act were brought into force; they stated that the basic educational qualification, in order to be enrolled for the Nursing Auxiliary Programme was the Secondary School Certificate Examination. The relevant extract of the said notification is reproduced below: “Secondary School Certificate Examination (10 years course), 10th class or central board secondary education or a recognized equivalent public examination. Subjects of study must be equivalents to those prescribed by the CBSE for the Class X with minimum 45%.”

#8. The INC again amended the regulations on 21.10.2016. These amendments were made applicable with effect from July 2012. The course was made into a two-year course. The minimum qualification provided for joining the course was to be 12 years of schooling. The relevant extract of the said amended criteria is as follows: “The minimum educational requirement shall be the passing of 12 years of schooling (10+2 year course) recognised by CBSE/ICSE/SSSCE/HSCE or a recognised equivalent examination.”

#9. It is in this background that on 15.03.2016, an advertisement was issued by the Uttarakhand Government inviting applications for appointment of trained ANMs in terms of the prevailing rules. However, the appointment did not spell out that the candidates ought to have finished their schooling with science as a subject. The relevant eligibility criteria in the said advertisement read as follows: “Eligibility Criteria: Candidate must have acquired educational qualifications prescribed by Indian Nursing Council, New Delhi. A B C D E F G H SUMAN DEVI & ORS. v. STATE OF UTTARAKHAND AND ORS. [S. RAVINDRA BHAT, J.] 307 Candidate must be registered with Uttarakhand Nurses and Midwives Council, Dehradun. A Photocopies of the statement of marks and the certificates shall be attached.”

#10. Soon after the advertisement was issued, the Uttarakhand Medical Health and Family Welfare Health Worker and Health Supervisor (Male and Female) Service Rules, 2016 (hereafter called “2016 Rules”) were brought into force. These were statutory in nature and replaced the 1997 Rules. The Rules significantly amended the eligibility criteria in a graded manner for different years. Rule 8(2) which is relevant for the purpose of the present discussion reads as follows: “Rule8(2) – Health Worker (Female) (i) A candidate must pass intermediate education of Uttarakhand Board and successfully completed two year course of Basic Health Worker (Female) training (including six months delivery training) or equivalent recognised qualification by the State Government. (ii) But for the selection year 2010 to 2013 those applicants who has passed 10th class examination from Board of High School and successfully completed 18 months course of Basic Health Worker (Female) training (including six months delivery training) or equivalent recognized qualification by the State Government. (iii) The Candidate has passed Intermediate Examination (Science Stream) of the Uttarakhand Board or any other equivalent qualification; in addition to which the candidates must have successfully completed 18 months course of Basic Health Worker (Female) training (including six months delivery training) or equivalent recognized qualification prior to the selection year 2010. B C D E F (iv) The candidate must be duly registered in the Nurses and Midwifery Council of Uttarakhand.” G

#11. Writ petitions were preferred before the Uttarakhand High Court, questioning the advertisement and seeking a direction that the recruitment, to the extent it was contrary to the rules (as it had not specifically stipulated that candidates with science in the school were H 308 SUPREME COURT REPORTS [2021] 3 S.C.R. eligible, and not others) be set aside. A learned single judge of the High Court, after issuing notice to the state and hearing the parties, allowed those writ petitions. The present appellants approached the Division Bench, aggrieved by that decision, contending that the advertisement was correctly framed because the INC’s regulations did not require science as an essential subject in the qualifying 10th standard, or 12th standard examination, and that they had been registered in terms of the INC’s regulations. They contended, therefore, that the single judge erred in holding that they were ineligible. Contentions of parties

#12. It is contended by Ms. V. Mohana, learned senior counsel for the appellants that they had qualified in the Intermediate level at the relevant times in Arts. These appellants also underwent the same syllabus and training as the candidates who had passed Intermediate in Science. She urged that rather than requiring that those qualified for admission to the ANM Course should have qualified Intermediate in Science, the State should have adopted a rational principle such as inter se merit among the candidates, in the completion of the concerned courses. It was urged that that there is no intelligible differentia distinguishing students with Intermediate in Arts and those who have done Intermediate in Science, nor is there any rational nexus with the object sought to be achieved. The insistence of the science subject amongst two persons falling in the same class, i.e., those who had completed Intermediate, and were registered with the INC, was discriminatory.

#13. It was argued that the purpose of every service rule is to provide equal opportunity to all. It is submitted that the result of the statutory rule contained in the proviso limiting the persons qualified to undergo the ANM course, to those who have done Intermediate in Science, is to offend the right to equality. The result of the rule is that it does not permit a person to work in the State of Uttarakhand as a Health Worker for the mere reason that the person has done Intermediate in Arts. The appellants also submit that there is a legitimate expectation that having completed the course of ANM, they would be considered for employment in Uttarakhand, given that they were registered.

#14. It was further argued that having regard to the provisions of the 1947 Act, which is a central enactment traceable to Entry 66 of List I of the Seventh Schedule, for the purpose of attaining uniformity in A B C D E F G H SUMAN DEVI & ORS. v. STATE OF UTTARAKHAND AND ORS. [S. RAVINDRA BHAT, J.] 309 standards of education, when the Centre has prescribed a uniform norm for getting admitted to the ANM Course, the states cannot prescribe a different criteria for recruitment to their posts or cadres, and exclude the appellants who conform to the requirements under the 1947 Act. It was pointed out that regulations were framed under Section 16 of the 1947 Act, and that the prescription confining eligibility to those who have completed Intermediate in Science, was untenable.

#15. It was argued that there was no whisper in the impugned advertisement that the 1997 Rules would apply. Counsel relied on Articles 15(2) and 16(2) in regard to the advertisement pursuant to which the petitioners5 applied (the case of the appellants is that they had applied pursuant to the said advertisement and were selected for training on the said basis). The advertisement appears to provide as a condition that the candidate should be a resident of a particular local area (a district). This was the basis for invoking Articles 15(2) and 16(2).

#16. It was next argued that, even though the rule contemplates training imparted by the Uttar Pradesh Nurses and Midwives Council, there was actually no training imparted by the UP Nurses and Midwives Council; that training was by some other body. The rule was therefore, rendered unworkable.

#17. Relying upon the judgment in Desh Bandhu Gupta v. Delhi Stock Exchange6, it was argued that the conditions spelt out in the advertisement as the eligibility norms for purposes of recruitment had to be given effect to. Further, relying upon the subsequent decision of this Court in N.P.N. Devin Katti v. Karnataka Public Service Commission7, learned senior counsel urged that the criteria and conditions spelt out in the advertisement would continue to bind the State till the end of the selection or the recruitment, as the case may be, and any intervening and subsequent change in the rule position would not affect the ongoing recruitment process. It was subsequently urged, therefore, that since the advertisement was issued on 15.03.2016, the subsequent amendment which came into force on 26.07.2016 could not be made applicable. In short, it was urged that the State was bound by the standards it prescribed – in this case, the conditions spelt out in the advertisement never stated that to be considered eligible, a qualified and registered ANM should