M. Bhuvaneswari2. The State of Tamil Nadu v. The State of Tamil Nadu

person who studied in the Government institution and Governmentrecognized private institution.W.P. No.28699 of 2006 filed under Article 226 of theConstitution of India praying for a writ of mandamus directing therespondents to consider the petitioners for appointment of StaffNurses in the Government General Hospitals and Primary HealthCentres under the respondents on the basis of seniority ofregistration in the Tamil Nadu Nurses and Midwives Council on parwith the candidates who underwent Nursing Course in the GovernmentInstitution or organisation without any discrimination between thepersons who studied in the Government Institution and Governmentrecognised private institution within the time framed manner.W.P. No.35944 of 2006 filed under Article 226 of theConstitution of India praying for a writ of declaration, declaringthe candidates qualifying from Private Nursing Colleges andUniversities in Tamil Nadu are eligible to be appointed as Nursesin the Government Hospitals in Tamil Nadu.For Appellants in W.A.726/2006 :Mr. N.G.R. Prasad for Mr. S. Saravana KumarFor Appellants in W.As.1223 & :Mr. R. Viduthalai, Advocate General1224/2006Assisted by Mrs. Bhavani Subbarayan,Government Advocate.For Petitioners in :Mr. A. ThamizharasanW.P.28699/2006For Petitioners in :Mr. M.V. Krishnan W.P.35944/2006For Respondents 1 & 8 : Mrs. Hema Sampath, Senior Counselin W.A.726/2006for Mr. R. SubramaniamFor Respondents 2 to 4 :Mr. R. Viduthalai, Advocate Generalin W.A.726/2006Assisted by Mrs. Bhavani Subbarayan, Government Advocate.For Respondent-5 :Mrs.Nalini Chidambaram SCin W.A.726/2006 for M/s.Glady's DanielFor Respondent-6 :Mr. V. jeevagiridharanin W.A.726/2006For Respondent-7 :Mr. S. Rajendiranin W.A.726/2006 https://hcservices.ecourts.gov.in/hcservices/ For Respondents 9 to 16 :Mr. T.R. Rajaramanin W.A.726/2006 For R17 in WA.726/2006 :Mr.G.RajanFor Respondent-1 : Mrs. Hema Sampath, Senior Counselin W.A.1223/2006 for Mr. R. Subramaniam For Respondents 2 to 5 : No Appearancein W.A.1223/2006For Respondent-1 : Mr. R.N. Amarnathin W.A.1224/2006For Respondents 1 to 3 in :Mr. R. Viduthalai, Advocate GeneralW.P.28699/2006 Assisted by Mrs. Bhavani Subbarayan, Government Advocate.For Respondents in :Mr. R. Viduthalai, Advocate GeneralW.P.35944/2006Assisted by Mrs. Bhavani Subbarayan, Government Advocate.J U D G M E N TPrabha Sridevan, J.Writ Petition Nos.36932 and 39236 of 2005 were filed by thepetitioners, the former for a mandamus to appoint the petitioner thereinas Staff Nurse and the latter for a mandamus to consider the petitionertherein for appointment as Staff Nurse. The grievance of the petitionerswas that only the persons who have studied in Government Nursing Colleges(Government Nurses in short) and have got a diploma had been called forinterviews and appointed in the Government General Hospitals and PrimaryHealth Centres, to the exclusion of other persons who have studied inprivate institutions (Private Nurses in short), and this is violative ofArticles 14, 16 and 21 of the Constitution of India. Respondents 4 to 7in the writ petitions were persons who had studied in Government NursingColleges and who had been called for interviews. The writ petitions wereallowed as prayed for. As against that, respondents 4 to 7 filed WritAppeal No.726 of 2006. The State filed Writ Appeal Nos.1223 and 1224 of2006. Writ Petition No.28699 of 2006 was filed by students who hadqualified in the three year diploma from private nursing colleges, who hadbeen neglected totally by the Government and therefore, they sought for amandamus to direct the respondents to consider the petitioners forappointment on the basis of seniority of their registration. Since thewrit appeals had already been filed, this writ petition was directed to beposted along with the appeals. Similarly, Writ Petition No.35944 of 2006was filed for a declaration that candidates qualified from private nursingcolleges are eligible to be appointed in Government Hospitals in TamilNadu. Private nurses have also impleaded themselves as intervenors. https://hcservices.ecourts.gov.in/hcservices/

2. Mrs. Nalini Chidambaram, Mrs. Hema Sampath, learned senior counselmade their submissions on behalf of the Private Nurses. The learnedAdvocate General made his submissions on behalf the State and Mr. A.L.Somayaji, learned senior counsel and Mr. N.G.R. Prasad, learned counselmade their submissions on behalf of the Government Nurses3. According to the petitioners, they had obtained diplomas inGeneral Nursing and Midwifery Course conducted by the Directorate ofMedical Education; they were also registered with the Tamil Nadu Nursesand Midwives Council; some of the writ petitioners had also been workingin private hospitals. Petitioners came to know that there were more than3,000 vacancies; so, they thought that they would be recruited andappointed in these vacancies since they had registered their names; but totheir shock, only those candidates who did their course in GovernmentNursing Colleges were selected and those who studied in privateinstitutions, even though they were recognised institutions, were notselected. They are qualified as per the Madras Medical SubordinateService Rules and they are entitled to be appointed. Denial of equaltreatment is violative of constitutional norms. 4. The stand of the Government was that as per the Madras MedicalCode, examinations are conducted for training selected candidates asnurses. The successful persons are admitted to the Nursing Course and oncompletion of the course are absorbed as nurses. At the commencement ofthe course, they execute a bond that they will serve the Government for aperiod of three years. The selected candidates are trained by theGovernment utilising the Government funds. They are paid stipend andconsiderable expenditure is incurred by the Government to train them. Itis specifically stated that the appointments are made based on communalrotation and performance. This procedure of appointment has been followedall these years and if it is unsettled, the Government would not be in aposition to keep their promise of providing employment to the nursingcandidates who have passed out of Government Nursing Colleges.5. We have heard the learned Advocate General for the Government, thelearned senior counsel and the learned counsel appearing on behalf of thepetitioners.6. The Rules for the Training of Nurses in Government Hospitals inthe State of Tamil Nadu are relevant :"..... https://hcservices.ecourts.gov.in/hcservices/ Rule-5 : Entrance examination and agreement – Candidateswill be admitted on three months trial and towards the end of thisperiod, a preliminary examination will be conducted by the NursingSuperintendent of Nursing Tutor of the Hospitals. Candidates whofail in the entrance examination in the first attempt will beallowed to continue their training for further period of one monthand re-examination will be held at the end of the month. If theyfail even in the second attempt, their training will be terminatedforthwith.Candidates who pass the entrance examination and foundmedically fit will be required to sign an agreement in the formgiven in the annexure IV to these rules to complete their trainingand to remain in service for a minimum period of three years afterthe completion of training, if required by the authorities.Notes – (1) An interval of one month should be allowed tolapse between first and second entrance examination to be held forthe benefit of the candidates who fail for the first time.(2) Deserving nurse pupils who have failed twice in theentrance examination will be permitted to appear for the thirdtime, after undergoing three months training at their own costs.Rule-6 : Course of training and syllabus and contract periodof Service – (a) The course of training for nurse pupils shallnot exceed 3-1/2 years as shown below. The Nurse Pupils will betaught as per the syllabus prescribed by the Indian NursingCouncil (Annexure 2 to these rules). .....Candidates may be allowed to seek employment elsewhere if theemployment scheme are not provided to them by the Governmentwithin six months from the date of completion of their training."....."Rule-16 : Appointment not guaranteed – Nurse Pupils whosuccessfully complete their training and obtain their certificateswill be eligible for appointment as nurse and they shouldregistere themselves with the Tamil Nadu Nurses and MidwivesCouncil immediately. Appointment cannot be guaranteed to all orany of the successful candidates. Recruitment will be made by theDirector of Health Services and Family Planning, in accordance https://hcservices.ecourts.gov.in/hcservices/ with the Tamil Nadu Medical Subordinate Service Rules."The relevant provisions of the Madras Medical Subordinate Service Rulesare as follows :"General qualifications – A candidate for appointment bydirect recruitment to the categories specified in column (1) ofthe table below must, as regards her age, satisfy the conditionsspecified in the corresponding entry in column (2) thereof.TABLECategoryAge (1) (2) 2. Nurses............Must not have completed the age of 32 years : Provided that a woman candidate who had been admitted to the training referred to in item (A) of the qualifications specified in column (2) of the Annexure for Nurses before the 22nd May 1935 shall be eligible for appointment if she has not completed the age of 40 years :Provided further that a woman candidate who had been admitted to the above training before the 30th September 1953, shall be eligible for appointment if she has not completed the age of 37 years :Provided that a candidate belonging to the Scheduled Castes or the Scheduled Tribes shall be eligible for appointment to the post of Hospital Social Workers if she has not completed the age of 40 years."....."6. Probation – (a) Every person appointed to a categoryincluding those appointed under a contract shall, from the date onwhich she joins duty, be on probation for a total period of twoyears on duty within a continuous period of three years." https://hcservices.ecourts.gov.in/hcservices/ Annexure 'A' to the said Rules reads as follows :ANNEXURE (Referred to in rule 5)Category Qualifications (1) (2) Categories 1 and 2 –Head Nurses and Nurses (Women)..(A) A successful training for a period ofnot less than three years in general nursing of men and women and for a period of not less than six months in midwifery training in both cases to be undergone in an institution approved by the State Government under rule 37 of the rules made under sub-section (2) of section 11 of the Madras Nurses and Midwives Act, 1926, with qualifications prescribed for registration as nurse and maternity assistant under the said Act ; or A foreign training which is considered by the Director of Medical Services to be equivalent or superior to the above training or possession of a basic degreein Nursing from a University GrantsCommission for the purpose of itsfinancial grant.(B) A person possessing a basic degreein Nursing shall be considered forpromotion as Head Nurse only if she has served for a total period of two years as a Nurse in a district headquarters hospital, a small mufassal hospital, a maternity hospital and a teaching general hospital.(C) But for appointment as a Nurse, a person who possesses the above qualifications or only the qualification in general nursing and who has rendered https://hcservices.ecourts.gov.in/hcservices/ satisfactory military service, shall be preferred.Provided that, if a person who has undergone training only in general nursing is not willing to undergo the training in Gynaecology and Obstetrics, all not be appointed to the service."The relevant provisions of the Tamil Nadu Nurses and Midwives Act, 1926are as follows : "5. Registration of nurses, midwives, health visitors andauxiliary nurse-midwives - (1) The Council shall maintain aregister of nurses, midwives, health visitors and auxiliary nurse-midwives and in such register shall be entered the names of allnurses, midwives, health visitors and auxiliary nurse-midwives,who have undergone the course of training and passed theexaminations and fulfil the conditions prescribed.(2) The register referred to in sub-section (1) shall consistof such parts and shall be maintained in such manner as may beprescribed.""11. Rules by the State Government - The State Governmentmay, after previous publication, make rules to carry out all orany of the purposes of this Act not inconsistent therewith.(2) In particular, and without prejudice to the generality ofthe foregoing power, they may make rules - (a) regulating the conduct of the elections of membersof the Council;(b) regulating the conditions of admissions to theregister;(bb) prescribing the conditions and restrictions subjectto which the Council shall enter in the register referred to insub-section (1) of section 5 of the name of any person under sub-section (2) of section 5-A.(c) regulating the conduct of any examinations which maybe prescribed as a condition of admission to the register, and anymattes ancillary to or connected with such examinations; https://hcservices.ecourts.gov.in/hcservices/ (d) prescribing the causes for which, the conditionsunder which and the manner in which, the nurses, midwives, healthvisitors, auxiliary nurse midwives, and dhais may be removed fromthe register and the procedure for restoration to the register ornurses, midwives, health visitors, auxiliary nurse midwives anddhais who have been removed therefrom;(e) regulating the selection of the panels and theconstitution of the Tribunal specified in sub-section (2) ofsection 8 and the procedure to be followed by the Tribunal;(f) prescribing the fees to be paid in respect of anappeal under this Act;(g) determining the manner in which all fees leviedunder this Act and all moneys received by the Council shall beapplied for the purposes of this Act;(3) All rules made under this Act shall, as soon as possibleafter they are made, be placed on the table of both Houses ofLegislature and shall be subject to such modifications by way ofamendment or repeal as the Legislature may make either in the samesession or in the next session."Similarly, the relevant provision of the Indian Nursing Council Act, 1947read as follows :"15-A. Indian Nurses Register - (1) The Council shall causeto be maintained in the prescribed manner a register of nurses,midwives, auxiliary nurse-midwives and health visitors to be knownas the Indian Nurses Register, which shall contain the names ofall persons who are for the time being enrolled on any Stateregister.(2) It shall be the duty of the Secretary of the Council tokeep the Indian Nurses Register in accordance with the provisionsof this Act, and from time to time, to revise the register andpublish it in the Gazette of India and in such other manner as maybe prescribed.(3) Such register shall be deemed to be a public documentwithin the meaning of the Indian Evidence Act, 1872, and may beproved by a copy published in the Gazette of India." https://hcservices.ecourts.gov.in/hcservices/

7. It was urged on behalf of the State that this is the practice thathas been followed for several years and the State has incurred a hugeexpenditure in training the nurses on the expectation that they wouldserve the State and the appointments have been made only in accordancewith the Tamil Nadu Medical Code.8. The Madras Medical Subordinate Service Rules were read out and ithighlighted that in respect of the appointments to all other categories itis stated that every person appointed to a category shall be on probationfor a total period of two years etc., while in the case of nurses alone,the Madras Medical Subordinate Service Rules refer to every personappointed to a category, "including those appointed under a contract" andthis would mean persons who have been trained and who have executed a bondas extracted above and appointed. It is also submitted on behalf of theState that an examination is conducted and only after that, the traineenurses are chosen and the persons who join the private institutions arecandidates who have failed the examination. Having failed in theexamination, they cannot now claim that they are entitled to the samebenefit or same treatment as those who had passed the examination and hadbeen inducted as trainees, given training and appointed to the posts. 9. Learned counsel appearing for the Private Nurses submitted thatthe training undertaken by the trainee nurses and the private nurses arenot different; the course content is the same. As far as practicaltraining is concerned, all private nurses are also sent to GovernmentHospitals for training. The institutions where the private nurses haveundergone their training are all recognised institutions and therefore,the clause in the Tamil Nadu Medical Subordinate Service Rules whichprescribes the qualification of undergoing training "in an institutionapproved by the State Government" is unreasonable and it is neither fairnor just to exclude the private nurses. This would violate Article 14 ofthe Constitution and it is totally arbitrary and there is no rationale forsuch exclusion. Learned counsel submitted that the Madras MedicalSubordinate Service Rules being a piece of subordinate legislation cannotbe overridden by the Tamil Nadu Medical Code, which admittedly areexecutive instructions. Learned counsel submitted that the statisticswould show that there are huge number of trainee nurses waiting to berecuited and if the State decides to accommodate all of them, then theprivate nurses would be permanently excluded from being appointed inGovernment Hospitals, which cannot be countenanced in law. The learnedcounsel submitted that when the Madras Medical Subordinate Service Rulesare clear, it is not necessary for the petitioners to challenge theexecutive order and they are entitled to seek for a mandamus forappointment. https://hcservices.ecourts.gov.in/hcservices/

10. The writ petitioners have come with a prayer for mandamus. Therules subject to which the Government Nurses have been given training andabsorbed as nurses have not been challenged. Of course, it was contendedby Mr. R.N. Amarnath that executive instructions can never override theMadras Medical Subordinate Service Rules framed under Article 309.However, the Madras Medical Code and the provisions thereunder which havebeen extracted above which deal with the manner in which these traineesenter into a contract and are taken in as nurses have been in vogue formany decades. The history of public health institutions in this Sate isover a century old. At that time, the Government thought out a well laidplan to start their own training institutions for nurses. With a view toattract the best talent, these institutions provided incentives for womento get training and service bonds were also obtained from them so that thetraining is utilised in Government Hospitals. During their inhousetraining, they were imbibed with a spirit of public service. AfterIndependence and the Constitution, the trainee nurses were taken in on thebasis of communal roster and merit was the criterion for admission. 11. The entry into the category of nurses starts with the admissioninto a Government Training School. It is a composite scheme ofrecruitment, training and absorption exclusively for Governmentinstitutions. According to the State, if a person wants a posting in aGovernment Hospital, the entry point is an admission in the traininginstitution run by the Government and there is no scope for any lateralentry. The candidates who succeed in the examination and are giventraining in Government institutions enter into an agreement to serve theGovernment for a minimum period of three years after completion of theirtraining. Therefore, the Government provides these candidates rent-freequarters, free supply of electricity, paid stipend, which includesuniform allowance and therefore, public money is spent on them. TheProspectus for admission also says "nursing students who have successfullycompleted their training and obtained their diplomas will be eligible forappointment as nurses. The appointment cannot be guaranteed to all or anyof the successful candidates. Recruitment will be made in accordance withthe Tamil Nadu Medical Subordinate Service Rules". Every year, 1795candidates successfully come out of these Government institutions andthere are more than enough candidates waiting for appointment in nurseposts. The Government is bound to protect these trainees and as observedin (1995) 2 S.C.C. 1, having spent public money on them, the absorption ofthese trainee students cannot be said to be unreasonable. 12. It was vehemently contended on behalf of the State and Governmentnurses that the private nurses who have failed to get admission in theentrance examination conducted by the Government and who have thereaftergot admission in private institutions cannot now seek parity with thoseGovernment nurses who have succeeded in the entrance examination and havegot out and are entitled to be absorbed in Government service. In fact,Rule 5 of the Tamil Nadu Medical Subordinate Service Rules shows that thecandidates will be admitted if they succeeded in the preliminaryexamination, i.e., the entrance examination conducted by the Government. https://hcservices.ecourts.gov.in/hcservices/ If they failed in the entrance examination, then they are given trainingfor a further period and a second examination is given. If they fail evenin their second attempt, their training will be terminated forthwith. Ifthe prayer of the petitioners for a mandamus to be appointed right away isgranted, then it will nullify Rule 5 and a person who has failed and whosetraining got terminated thereupon can now go to a private institution, gettraining and seek equality with those candidates who succeeded in theentrance examination and got appointed. As regards Rule 6, it wassubmitted that if the Government does not provide them with any employmentscheme within six months from the date of completion of their training,then they can seek employment elsewhere. Therefore, the Government cannotmaintain these names in a permanent pool, thereby shutting the doors tothe private nurses forever. Rule 6 cannot be cannot construe this way.Rule 6 is a provision in favour of the candidates. The Government cannotkeep these candidates permanently in waiting without giving thememployment and therefore, if a candidate, after waiting for six months,seeks employment elsewhere, then the Government cannot invoke theagreement and restrain such candidate from getting employment elsewhereand therefore this rule says that the Government cannot enforce theagreement against the candidates after the expiry of six months from thedate of their completion of their training. This rule is actuallly infavour of the Government Nurses.13. Rule 16 was also cited on behalf of the the Private Nurses toshow that it is not as if the State promises the appointment to all, andif that is so, then the Government cannot seek refuge under the provisionsof the Tamil Nadu Medical Code and deny the private nurses the right to beappointed. This submission is also to be rejected. Rule 16 would come tothe aid of the Government if a mandamus is sought for by a Governmentnurse for a direction to appoint her. Then the Government can turn aroundand say that appointment was not guaranteed to all or any of thesuccessful candidates in view of Rule 16 and therefore, all that they canexpect is to be considered for appointment. When even the nurses who havebeen trained in the Government institutions and who have executed the bondto serve the Government for a period of three years would not be entitledto a mandamus in view of Rule 16, it is difficult to see how the privatenurses who had failed in their attempt to secure admission by passing theGovernment entrance examination would be entitled to such a mandamus.Their right is much inferior to that of the Government nurses. 14. A large expenditure is incurred by the Government is spelt out inthe counter and the private nurses also do not deny the fact that theGovernment has incurred the expenditure. Of course, it was contended onbehalf of the private nurses that out of the 1745 students, 645 studentsare given stipends, but tuition fees is charged; 100 students are notgiven stipends, but the tuition fee is waived; but the rest of the 1000students pay a nominal fees. But however, it is stated by the Governmentthat the last category is no longer in vogue. It is also seen that theGovernment has not advertised the vacancies and called for applications.The vacancies have been filled up by absorption. For 50 years, this https://hcservices.ecourts.gov.in/hcservices/ practice has held the field. This Medical Code has been the basis forfilling up the vacancies of nurses for so long.15. In (1995) 2 S.C.C. 1 [U.P. S.R.T.C. vs. U.P. Parivahan NigamShishukhs Berozgar Sangh], it was held as follows : "The material resources of this country are limited. Indeedthis is so for every country. The resource-crunch is, however,acute for us; and so whenever and wherever public money isinvested, it has to be seen that there is a proper utilisation ofthe same in the sense that the public ultimately gets benefit ofthe same. This prelude is to highlight the idea which we propose tofocus as we proceed to bring home the need to make the investmentin apprentice trainees useful to the society, which would be sowhen the training received by them is put to social use. We areputting this aspect of the matter at the forefront because one ofthe appellants namely, the U.P. State Road Transport Corporation(hereinafter “the Corporation”) has made a grievance about somedirections given by the Allahabad High Court to employ those whohad received training in the workshop of the Corporation. Thedirection has been given mainly at the call of promissoryestoppel which is not applicable according to the Corporation. Wewould agree with this stand of the Corporation; but then, anotherreason advanced for the direction is also spending of money onimparting the training to the apprentice, which aspect isrelevant as already alluded, and which we propose to buttressfurther. From the aforesaid, it is clear that the training impartedis rather exhaustive and elaborate. Sufficient amount of money isalso spent on the trainees by way of payment of stipend to them.What is more, there is an obligation on the employers to providean apprentice with training in his trade in accordance with theprovisions of the Act — Schedule V to the Rules containingdetails of the obligations; and the employer is also required toensure that a person possessing prescribed qualification is placed in charge of training of the apprentices. The Act seeks toenforce these obligations on the pain of even prosecution, aboutwhich mention has been made in Section 30 of the Act. So the legislature did desire and make adequate provisionsto see that the competent persons receive due training to caterto the need of increasing demand for skilled craftsmen on onehand and to improve the employment potential of the trainees onthe other. Good amount of money, which would be public money incase of public bodies like the Corporation, is also spent ontraining the apprentices. Further, during the period of training,the apprentices are put under a discipline akin to that ofregular e mployee inasmuch as Section 17 states that in allmatters of conduct and discipline, the apprentice shall be https://hcservices.ecourts.gov.in/hcservices/ governed by the rules and regulations applicable to employees ofthe corresponding category in the establishment in which theapprentice is undergoing training. Section 16 requires payment tothe apprentice in case of injury due to accident arising out ofand in the course of training, in accordance with the provisionof the Workmen’s Compensation Act, 1923, as modified by the Act.The Rules have dealt with the hours of work (Rule 12) and grantof leave (Rule 13) also. The aforesaid provisions are sufficiently indicative of thefact that the training imparted is desired to be result-oriented;and the trainees are treated akin to employees. Even so, Section22 of the Act states, and it is this provision which has beenpressed into service by the appellants, that it shall not beobligatory on the part of the employer to offer any employment toany apprentice who has completed the period of his apprenticeshiptraining in his establishment unless there be a condition in thecontract to the contrary. The model contract form finding placein Schedule VI of the Rules echoes the voice of Section 22(1) inits second para. The Corporation has placed on record a modelcontract form entered into between it and the trainees which alsostates about the aforesaid non-obligation. In the background of what has been noted above, we statethat the following would be kept in mind while dealing with theclaim of trainees to get employment after successful completionof their training: (1) Other things being equal, a trained apprentice should begiven preference over direct recruits. (2) For this, a trainee would not be required to get hisname sponsored by any employment exchange. The decision of thisCourt in Union of India v. N. Hargopal [(1987) 3 S.C.C. 308]would permit this. (3) If age bar would come in the way of the trainee, thesame would be relaxed in accordance with what is stated in thisregard, if any, in the service rule concerned. If the servicerule be silent on this aspect, relaxation to the extent of theperiod for which the apprentice had undergone training would begiven. (4) The training institute concerned would maintain a listof the persons trained yearwise. The persons trained earlierwould be treated as senior to the persons trained later. Inbetween the trained apprentices, preference shall be given tothose who are senior."As per this decision, the trainees stand on a different footing from thedirect recruits. 16. In (2003) 5 S.C.C. 341 Secy., A.P. Public Service Commission vs.Y.V.V.R. Srinivasulu], it was held thus : https://hcservices.ecourts.gov.in/hcservices/ "A mere rule of preference meant to give weightage to theadditional qualification cannot be enforced as a rule ofreservation or rule of complete precedence. Such a constructionwould not only undermine the scheme of selection envisagedthrough the Public Service Commission on the basis of meritperformance but also would work great hardship and injustice tothose who possess the required minimum educational qualificationwith which they are entitled to compete with those possessingadditional qualification too, and demonstrate their superioritymeritwise and their suitability for the post. It is not to beviewed as a preferential right conferred even for taking up theirclaims for consideration. On the other hand, the preferenceenvisaged has to be given only when the claims of all candidateswho are eligible are taken for consideration and when any one ormore of them are found equally positioned, by using theadditional qualification as a tilting factor, in their favourvis-à-vis others in the matter of actual selection."The stand of the State is that the entire process is one composite schemeof recruitment, training and absorption, and not one of reservation fortrainees. So, this decision will not apply.17. In (1998) 7 S.C.C. 66 [National Buildings Construction Corpn. vs.S. Raghunathan], it was held as follows :"The doctrine of “legitimate expectation” has its genesis inthe field of administrative law. The Government and itsdepartments, in administering the affairs of the country, areexpected to honour their statements of policy or intention andtreat the citizens with full personal consideration without anyiota of abuse of discretion. The policy statements cannot bedisregarded unfairly or applied selectively. Unfairness in theform of unreasonableness is akin to violation of natural justice.It was in this context that the doctrine of “legitimateexpectation” was evolved which has today become a source ofsubstantive as well as procedural rights. But claims based on“legitimate expectation” have been held to require reliance onrepresentations and resulting detriment to the claimant in thesame way as claims based on promissory estoppel. .....As pointed out by this Court in Food Corpn. of India v.Kamdhenu Cattle Feed Industries 4 which has already been referredto above, the question whether the expectation and the claim isreasonable or legitimate is a question of fact in each case. Itwas also observed that this question had to be determined notaccording to the claimants’ perception but in larger publicinterest. https://hcservices.ecourts.gov.in/hcservices/ Incidentally in this case, the question of “legitimateexpectation” was not raised in the petition and no foundation waslaid in the pleadings for such a plea being advanced before theCourt. Strangely, the High Court allowed this plea at the stageof argument and allowed the petitions only on the ground of“legitimate expectation” without the least realising that therewas hardly any legitimacy in the claim of the respondents. In theabsence of pleading and the affidavit of the respondents insupport t hereof, the whole exercise done by the High Courtcannot but be termed to be speculative." The Private Nurses have not shown how legitimate expectation arises inthis case. For over 50 years, only the Government Nurses have beenabsorbed. In fact, the private institutions are of recent origin andtherefore, the question does not arise. 18. In (2002) 4 S.C.C. 510 [State of H.P. vs. Padam Dev], it was heldas follows :"We are also of the view that the judgment of the High Courtcannot be sustained on the merits. The decision to make a specialconcession for Gopal Sahayaks in the matter of additionaltraining as Veterinary Pharmacists was admittedly a policydecision. The framing of administrative policy is within theexclusive realm of the executive and its freedom to do so is, asa general rule, not interfered with by courts unless the policydecision is “demonstrably capricious or arbitrary and notinformed by any reason whatsoever or it suffers from the vice ofdiscrimination or infringes any statute or provisions of theConstitution [Krishnan Kakkanth v. Govt. of Kerala, (1997) 9S.C.C. 495]."The legality of the policy decision cannot be decided where only amandamus is sought for, and the policy followed till now has not beenshown to be palpably illegal or arbitrary.19. In 1987 (Supp) S.C.C. 587 [Thote Bhaskara Rao v. A.P. PublicService Commission], it was held thus : "What is forbidden by the Constitution is discriminationbetween persons who are substantially in similar circumstances orconditions. An equal treatment does not arise as between personsgoverned by different conditions and different sets ofcircumstances. It is obviously permissible to classify personsinto groups and such groups may be differently treated if thereis a reasonable basis for such difference or distinction. Havingregard to the difference in the nature of service under theGovernment and that of the other services, therefore, aclassification based on that line cannot be struck down on ground https://hcservices.ecourts.gov.in/hcservices/ of illegal discrimination. The proviso in question must be heldto be valid and effective." In (1995) 2 S.C.C. 135 [Anant Madaan v. State of Haryana], it was held asfollows : "In the present case, the reservation which has been made onthe basis of candidates having studied for the preceding threeyears in recognised schools/colleges in Haryana is in respect ofthese 85% of seats. It excludes 15% seats which have to be filledin on an all-India basis. This eligibility criterion, therefore,is in conformity with the decisions of this Court referred toabove. It cannot, therefore, be considered as arbitrary orunreasonable or violative of Article 14 of the Constitution."We have already seen that the Government Nurses and Private Nurses standon an entirely different footing.20. In (2006) 4 S.C.C. 1 [Secretary, State of Karnataka vs. Umadevi],inter alia, it was held that the State should not be allowed to departfrom the normal rule and indulge in temporary employment in permanentposts and that "transgression of the rules of regular appointment" cannotbe encouraged.21. The decision rendered in Umadevi's case will not apply to theGovernment Nurses since their appointments are not ad hoc. It is inaccordance with the provisions of the Madras Medical Code and thisprocedure has been in vogue for several decades and their appointment isalso in accordance with the Madras Medical Subordinate Service Rules sincethey are all candidates who have undergone training in Governmentinstitutions. Equality cannot also be claimed between Government Nursesand Private Nurses since it is very apparent that they fall into twogroups. Considerable money is spent on the Government Nurses for theirtraining, for which they execute a bond undertaking to serve theGovernment for a period of three years and as and when their turn comes,in accordance with the roster and their registration, they are absorbedinto Government service. They are all candidatse who had appeared for theentrance examination conducted by the Government and come outsuccessfully. On the other hand, he Private Nurses are those candidateswho did not appear in the entrance examination or if they had appeared,had failed and had pursued their studies in private institutions. Thefact that the course content in the private institutions and theGovernment institutions is the same is hardly material. The rules providethat if a student fails after the second attempt, the training isterminated forthwith and therefore, all the benefits and consequenceswhich accrue from the training cannot also be asserted as a matter ofright by such failed students. Having failed in the entrance examinationand having pursued their studies in private institutions, they cannot now https://hcservices.ecourts.gov.in/hcservices/ say that they are entitled to the same treatment as the students who hadpassed the entrance examination and had pursued their course in Governmentinstitutions. A reading of the bond executed by the Government Nursesalso shows that they subject themselves to certain terms and conditionsand the Private Nurses have no such liability.22. The Madras Medical Code has not been challenged till date. Thejudgment in (1995) 2 S.C.C. 1 (cited supra) specifically answers thequestion with regard to special treatment to persons on whom public fundshave been expended. In (2003) 11 S.C.C. 146 [Saurabh Chaudri v. Union ofIndia], it was held as follows :"The courts are normally reluctant to issue any direction tothe Central Government for making law. Following our practice, werefrain ourselves from issuing any direction in this regard. Wehope and trust that the Central Government expeditiouslyconsiders making of a legislation or taking such steps as arenecessary in this behalf keeping in view the requirement ofcoordination in higher education in terms of Entry 66 List I ofthe Seventh Schedule of the Constitution of India......The Court while adjudicating upon the constitutionality ofthe provisions of the statute, may notice all relevant factswhether existing or conceived. This Court may therefore noticethe following : (i) The State runs the universities. (ii) It has to spend a lot of money in imparting medicaleducation to the students of the State. (iii) Those who get admission in postgraduate courses arealso required to be paid stipends. Reservation of some seats to areasonable extent, thus, would not violate the equality clause. (iv) The criterion for institutional preference has now cometo stay. It has worked out satisfactorily in most of the Statesfor the last about two decades. (v) Even those States which defied the decision of thisCourt in Dr Pradeep Jain's case had realized the need forinstitutional preference. (vi) No sufficient material has been brought on record fordeparting from this well-established admission criterion. (vii) It goes beyond any cavil of doubt that institutionalpreference is based on a reasonable and identifiableclassification. It may be that while working out the percentageof reservation invariably some local students will havepreference having regard to the fact that domicile/residence wasone of the criteria for admission in MBBS course. But together https://hcservices.ecourts.gov.in/hcservices/ with the local students, 15% students who had competed in all-India entrance examination would also be getting the samebenefit. The percentage of students who were to get the benefitof reservation by way of institutional preference would furthergo down if the decision of this Court in Dr Pradeep Jain case 3is scrupulously followed. (viii) Giving of such a preference is a matter of Statepolicy which can be invalidated only in the event of beingviolative of Article 14 of the Constitution of India. (ix) The students who would get the benefit of institutionalpreference being on identifiable ground, there is hardly anyscope for manipulation." 23. It is open to the Government to take a decision and in fact, thelearned Advocate General fairly acknowledged that this Code came intoeffect at a time when there were not many nursing institutions, at anyrate, there were hardly any private institutions. Now where there is aclamour for admission to nursing courses, the Government will have to takeinto account the changes that have taken place in the last 100 years. Wecannot direct the State to make an amendment in this regard. However, theState may consider making a provision which will ensure that theopportunity to be appointed as a Government Nurse is not foreclosed tostudents who have pursued their studies in private institutions, whilesafeguarding the position of Government Nurses. Many documents were alsoproduced to show that the private institutions were all registered andrecognised. 24. The selection process was not initiated. It is the categoricstatement of the Government that there was no advertisement. It is alsotheir case that these students who had been trained for Government serviceare still waiting in queue and therefore, the appointment would be givento those on whom public money has been spent. This course is not strictlyakin to apprentices. According to the State, this is an integrated,composite course of education and it starts when the student passes theentrance examination. The judgment in (1995) 2 S.C.C. 1 (supra) alsoclearly says that the two classes are different. Therefore, the findingthat the Private Nurses are entitled to be treated as equal and thereforeentitled to a mandamus cannot be accepted, especially since even those whoare trained are not entitled to a mandamus for as a matter of right.25. It is also relevant to note that some of the Private Nurses havenow filed writ petitions challenging the validity of the rules subject towhich Government Nurses are appointed. In the present case, since only amandamus was sought for, the counter filed by the Government did notaddress this issue and therefore, even while we were hearing the matter,we suggested to the counsel appearing for the Private Nurses that they maywithdraw their writ petition with liberty to file a fresh one. But theydid not want to do so. However, it is now stated that they have alsofiled a writ petition. All the contentions raised here can be raised by https://hcservices.ecourts.gov.in/hcservices/ them in that writ petition. Any observation made in this judgment is onlyto underscore the position that a mandamus, as sought for, cannot beissued in these cases. But as regards the manner in which the two groupsare entitled to be treated inter se and the questions whether theexecutive orders run contrary to the statutory rules or whether theexecutive orders only fill up gaps where the statutory rules are silent,and whether the words "including those appointed under a contract" referto the bond executed by the Government Nurses, are all matters which canbe raised and dealt with in the said writ petition.26. For all these reasons, the writ appeals have to be allowed andthey are accordingly allowed since the mandamus prayed for cannot begranted. Consequently, the writ petitions are dismissed. However, therewill be no order as to costs. Consequently, all the connectedmiscellaneous petitions are closed. abSd/-Asst.Registrar/true copy/ Sub Asst.RegistrarTo1. The Secretary, Health & Family Welfare Department, Govt. of Tamil Nadu, Fort St. George, Chennai-9.2. The Director of Medical Services, Teynampet, Chennai-18.3. The Registrar The Tamil Nadu Nurses and Midwives Council, Chennai-4.4. The Director, Rural and Medical Service, Teynampet, Chennai-6.5. The Joint Director, Health and Welfare Service, Teynampet, Chennai-6. https://hcservices.ecourts.gov.in/hcservices/

6. The Director of Medical Services, Nursing Section, Health Department, Secretariate, Chennai-9.+2 ccs to Mr.R.Subramanian, (Sr.No.29516)+1 cc to Mr.Gladys Daniel, (Sr.No.29137)+1 cc to Mr.V.Jeevagiridharan, (Sr.No.29136)+1 cc to Mr.S.Saravanakumar, (Sr.No.30139)+1 cc to Mr.Government Pleader (Sr.No.29268)BS(CO)dcp/17.7.07W.A. Nos.726, 1223 & 1224 of 2006,W.P. Nos.28699 and 35944 of 2006.