Flower Augustine Nursing Superintendent v. Chairman, Regional Cancer Centre, Thiruvananthapuram; Regional Cancer Centre; The Director, Regional Cancer Centre; Sreelekha R.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** ## **WEDNESDAY, THE 22ND DAY OF MAY 2013/1ST JYAISHTA 1935** ## **WP(C).No. 11986 of 2008 (B)** **----------------------------** **PETITIONER(S) :** **FLOWER AUGUSTINE NURSING SUPERINTENDENT, REGIONAL CANCER CENTRE THIRUVANANTHAPURAM.** **BY ADV. SRI.ELVIN PETER P.J.** **RESPONDENT(S) :** **1. CHAIRMAN, REGIONAL CANCER CENTRE, P.B.NO. 2417 MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM.** **2. REGIONAL CANCER CENTRE, REPRESENTED BY ITS DIRECTOR, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM.** **3. THE DIRECTOR, REGIONAL CANCER CENTRE, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM.** **4. SREELEKHA.R., CHIEF NURSING OFFICER, REGIONAL CANCER CENTRE, MEDICAL COLLEGE P.O. THIRUVANANTHAPURAM.** **R1 TO R3 BY ADV. SRI.K.R.RADHAKRISHNAN NAIR R4 BY ADVS. SRI.K.P.RAJEEVAN SRI.KRB.KAIMAL (SR.)** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22-05-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BP** ## **WP(C).No. 11986 of 2008 (B)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS :** - **P1: COPY OF THE CERTIFICATE DT 3/10/2000 ISSUED TO THE EPTITIOENR FROM INDIRA GANDHI NATIONAL OPEN UNIVERSITY.** - **P2: COPY OF THE CIRCULAR DT 7/5/2005 ISSUED FROM THE KERALA PUBLIC SERVICE COMMISSION.** - **P3: COPY OF THE RECOGNITION OF THE NURSING COUNCEL OF INDIA THAT B.Sc. NURSING DEGREE WARDED BY I.G. NATIONAL OPEN UNIVERSITY IS SUFFICIENT QUALIFICATION FOR ADMISSION TO M.S.C. NURSING COURSE.** - **P4: COPY OF THE ORDER DT 14/1/1993 ISSUED TO THE PETITIONER BY THE R3.** - **P5: COPY OF THE ORDER DT 17/12/2003 OF THE ADMINISTRATIVE OFFICER OF THE R.C.C.** - **P6: COPY OF THE ORDER DT 27/7/1981 OF THE GOVERNMENT.** - **P7: COPY OF THE ORDER DT 25/4/2006 OF THE ADMINISTRATIVE OFFICER OF THE R.C.C.** - **P8: COPY OF THE NEW ITEM PUBLISHED IN THE NEW INDIAN EXPRESS DT 9/3/2007.** - **P9: COPY OF THE JUDGMENT DT 16/7/2007 IN WPC NO. 11621 OF 2007.** - **P10: COPY OF THE ORDER DT 14/1/2008 OF THE GOVERNMENT** - **P11: COPY OF THE NEWS ITEM APPEARED IN THE VEEKSHANAM DAILY DT 31/1/2008.** - **P12: COPY OF THE APPLICATION FOR THE POST OF CHIEF NURSING FFICER DOWNLOADED IN THE INTERNET.** - **P13: COPY OF RELEVANT EXTRACT OF THE ONE-MAN COMMISSION REPORT OF MR.M.NARAYANA PILLAI OF JUNE, 1999.** - **P14: COPY OF CIRCULAR DT 8/2/2007 ISSUED BY INDIRA GANDHI NATIONA OPEN UNVIERSITY.** - **P15: COPY OF LETTER DT 25/7/2008 ISSUED BY INDIRA GANDHI NATIONAL OPEN UNVIERSITY.** - **P16: COPY OF MINUTES OF THE MEETING ON 19/1/2008 WITH RESPECT TO THE SELECTION PURSUANT TO NOTIFICATION IN MARCH, 2007.** - **P16(a): COPY OF SHORT LIST, WHICH THE PETITIOENR OBTAINED UNDER RTI ACT.** - **P17: COPY OF NOTES DT 4/1/2008 OF THE SELECTION COMMITTEE.** - **P18: COPY OF CERTIFICATE DT 2/6/2000 ISSUED BY INDIAN NURSING COUNCIL, NEW DELHI.** ## **RESPONDENT'S EXHIBITS :** **EXT.R4A: COPY OF LETTER DT 31/03/2008 SENT BY THE REGISTRAR OF THE KERALA UNVIERSITY TO THE R2 DIRECTOR OF REGIONAL CENCER CENTRE, THIRUVANANTHAPURAM EXT.R4B: COPY OF LETTER DT 26/03/2008 SENT BY THE REGISTRAR OF THE KERALA NURSES' AND MIDWIVES' COUNCIL TO THE R2 DIRECTOR OF REGIONAL CENCER CENTRE, THIRUVANANTHAPURAM EXT.R4C: COPY OF ORDER DT 5/9/1994 ISSUED BY THE DIRECTOR OF REGIONAL CANCER CENTRE. EXT.R4D: COPY OF JUDGMENT IN O.P. N. 13003/1994 DT 10/12/1998. EXT.R4E: COPY OF ORDER DT 30/11/2002 ISSUED BY THE DIRECTOR OF REGIONAL CANCER CENTRE. EXT.R4F: COPY OF DEGREE CERTIFICATE IN BACHELOR OF ACADEMIC LAW ISSUED BY THE UNIVERSITY OF KERALA ON 14/2/2001. EXT.R4G: COPY OF DEGREE CERTIFICATE IN BACHELOR OF LAW ISSUED BY THE UNVIERSITY OF KERLA ON 27/2/2001. EXT.R4H: COPY OF LETTER DT 8/5/2007 ISSUED BY THE SECRETARY TO GOVERNMENT TO THE DIRECTOR OF REGIONAL CANCER CENTRE. EXT.R4I: COPY OF CERTIFICATE DT 27/5/2009. EXT.R4J: COPY OF PAY FIXATION STATEMENT DT 2/3/2005 OF THE R4. EXT.R4K: COPY OF THE ORDER NO. 5005/C.I/99/ADM-II/RCC DATED 23/10/1999 ISSUED BY THE R2. EXT.R4I: COPY OF THE JUDGMENT DT 18/8/2000 OF THIS HON'BLE COURT IN W.A. 639/2000. EXT.R2(a): COPY OF THE LETTER RECEIVED FROM KEALA UNVIERSITY DT 31/3/2008. EXT.R2(b): COPY OF THE LETTER RECEIVED FROM KNMC DT 26/3/2008 EXT.R2(c): COPY OF THE FORWARDING LETTER FOR NOTIFYING THE ADVERTISEMENT EXT.R2(d): COPY OF THE CERTIFICATE AND PROOF OF EXPERIENCE OF THE R4. EXT.R2(e): COPY OF THE EXTRACT OF THE ATTENDANCE MARKED BY THE R4. //TRUE COPY// P.A. TO JUDGE** ## **BP** C.K.ABDUL REHIM,J. ------------------------------WP(C).NO. 11986 of 2008 --------------------------------Dated this the 22nd day of May, 2013 ## JUDGMENT The petitioner is challenging appointment of the 4[th] respondent as Chief Nursing Officer under the 2[nd] respondent, the Regional Cancer Centre. As per Ext.P4 the petitioner was appointed as Nursing Superintendent Grade II in the 2[nd] respondent during the year 1993 and her probation was declared in the year 2003, as per Ext.P5. The 2[nd] respondent is a Society constituted under the provisions of the Travancore – Cochin Literary, Scientific and Charitable Societies Registration Act 1955. It is a creation of the State Government. The administration of the Society is vested with the Governing Body and executive committee as per the provisions of the bye-laws. The Executive Committee of the 2[nd] respondent had created the post of Chief Nursing Officer (CNO) above the post of Nursing Superintendent. The post of CNO was later redesignated as Associate Professor in the year 1995. Later the post was again redesignated as Chief Nursing Officer. The incumbent who was WP(C). 11986 /2008 2 holding the said post retired on superannuation on 30.4.2006. As per Ext.P7 order the petitioner, who was then working as Nursing Superintendent Gr.-II was assigned over all charge of the Nursing Division. But the 2[nd] respondent thereafter took a decision to fill up the post of CNO by direct recruitment and Ext.P8 notification was published on 9.3.2007. The petitioner applied for the post on the basis of Ext.P8 notification. Meanwhile she had approached this court in a writ petition seeking direction for consideration of her representation requesting to treat the post of CNO as a promotion post of the Nursing Superintendent. In Ext.P9 judgment this court directed the 2[nd] respondent to consider the representation and to take a decision. It was observed that in the judment that it is for the 2[nd] respondent to decide what should be the method of appointment to the post created by it. It is made clear that, if the 2[nd] respondent thinks that the appointment should be through direct recruitment, this court cannot interfere. This court felt it only appropriate to direct consideration of the representation of the petitioner by the Chairman of the Executive Committee of the WP(C). 11986 /2008 3 second respondent, who is none other than the Secretary of the Government (Health and Family Welfare Department) . In compliance of the directions contained in Ext.P9 judgment the matter was considered by the 1[st] respondent. The request was turned down observing that it is on the basis of a decision of the Executive Committee that steps were initiated to make direct recruitment to the post of CNO. It is further mentioned that Government have permitted the 2[nd] respondent to go ahead with the recruitment process. It is only on the basis of the permission obtained from the Government that the post was advertised. According to the 1st respondent a high level of academic proficiency and clinical expertise is expected for the post of CNO. Therefore finding out a right candidate for such responsible post is possible only through direct selection and merit should not be sacrificed for seniority. Since there was no candidate available in the selection conducted on the basis of Ext.P8 notification, the society took decision to renotify the post. Accordingly Ext.P12 notification was published on 31.1.2008 in which candidates including the petitioner had applied. The 2[nd] respondent found WP(C). 11986 /2008 4 that the 4[th] respondent alone was having the required qualification and she was selected. 2. Contention of the petitioner is that rejection of her candidature on the basis that degree of B.Sc Nursing obtained from the Indira Gandhi National Open University (IGNOU) is not recognised either by the Kerala Nurses and Midwives Council or by the University of Kerala, cannot be sustained. Petitioner is attacking prescription of such qualification in Ext.P12. According to the petitioner, qualification acquired through Distance Education ought to have been accepted as a valid degree in B.Sc Nursing. The insistence that the degree should be recognised by the Nurses and Mid wives Council or the University of Kerala is highly unreasonable, irrational and is opposed to the principles of law declared in various judicial precedents. Learned counsel had pointed out Ext.P2 circular issued by the KPSC, which reveals that the Commission had ordered that qualification acquired through Distance Education can be recognised for the selection to all posts including the teaching posts. He had further pointed out that the Nursing Council had accepted degree of B.Sc Nursing WP(C). 11986 /2008 5 acquired through Distance Education as recognised qualification for admission to M.Sc Nursing course. Ext.P3 is produced in support of the above contention. Petitioner had further relied on Ext.P13 which is the recommendation of the Commission appointed to conduct study about the revision of scales of pay and allowances and promotional avenues and other matters of non academic staff in the 2[nd] respondent society. There also it is observed that degrees issued by the IGNOU are at par with degrees of Indian Universities. According to the petitioner, when the qualification of degree in B.Sc Nursing and experience of 10 years in the field of Nursing is fixed as eligibility criteria, insistence for recognition of any such degree by the Nurses Council and the University of Kerala was totally unnecessary. According to the petitioner this will amount to a decision which is totally unreasonable and irrational. It is further contended that the 2[nd] respondent has no power or authority to insist upon such a condition. Hence the petitioner seeks to set aside the appointment of the 4[th] respondent and inter alia seeks direction for consideration of the petitioner for appointment as CNO. WP(C). 11986 /2008 6 3. In the counter affidavit of the 2[nd] respondent it is mentioned that, according to the Memorandum of Association and Rules relating to the 2[nd] respondent society, the authority for creation of any cadre and posts is the Executive Committee, which is empowered to fix the age, experience and qualification with respect to any post. The 2[nd] respondent is not following the Rules of selection of KPSC and the fixation of qualification for the post of CNO as prescribed under Ext.P12 was perfectly under authority and competence. 4. Learned senior counsel Sri. K.R.B. Kaimal appearing on behalf of the 4[th] respondent had pointed out that, the petitioner was one of the applicants in the selection process conducted on the basis of Ext.P8 notification. She, along with other candidates, were found not eligible to be appointed on the basis of the qualification prescribed. With respect to the further notification (Ext.P12 ) also the petitioner applied despite having clear understanding about the qualification prescribed. At no point of time the petitioner had chosen to challenge the notifications issued. Even in the present writ petition there is no challenge WP(C). 11986 /2008 7 against the notification or against prescription of the qualification. It is contended that prescription of any particular qualification to any post or cadre is fully within the domain and wisdom of the 2[nd] respondent Society, which is having autonomous powers. Therefore the attack made against prescription of the qualification cannot be entertained, is the contention. 5. While evaluating the rival contentions, it is to be noticed that the petitioner is not challenging either Ext.P8 or Ext.P12 notification. Her sole contention is based on competence and authority to prescribe such qualification, and on the reasonableness of the prescription of a condition insisting upon recognition of the degree. Learned counsel for the petitioner had relied on a decision of this court in **Anu vs. State of Kerala (2009(1) KLT 917).** This court held that there is no reason for considering distance education degree as less a degree than a degree obtained by attending classes. But it is a case where the qualification prescribed for the post has not made any distinction between degree obtained by attending regular college and by distance education. The dictum laid is to the effect that WP(C). 11986 /2008 8 when the qualification prescribed does not make any such distinction a Master Degree through distance education cannot be discarded. He relied on another decision of this court in **State of Kerala vs. Thulasibai (2011 (3) KLT 181).** Observations contained therein is to the effect that, when the educational qualification prescribed by the special rules insists only on a Master Degree with atleast 50% marks from a recognised university, it does not insist that a degree should be obtained after a regular course of study. Therefore it is observed that the qualification acquired by distance education is not at all inferior in any manner. Distinction on facts in the case at hand is that, the notification in which the qualification prescribed had insisted on a degree of B.Sc Nursing recognised by the Nurses and Midwives Council and the University of Kerala. 6. As observed above, the 2[nd] respondent is a society having autonomous powers, being a creation of the Government. It is evident that the Government have recognised creation of the post of CNO and permitted the 2[nd] respondent to fill up the post by direct recruitment. Going by the Memorandum of Association WP(C). 11986 /2008 9 and Bye-laws, the Executive Committee is the authority vested with powers in the matter of creation of post and prescription of qualification. Therefore it is to be held that the issue is one purely coming within the decision of the Executive Committee. As observed in Ext.P9 judgment it is a matter which is to be decided by the 2[nd] respondent. Therefore the reasonableness or rationale behind such decision cannot be questioned before this court, unless it is established that the decision is so unreasonable, arbitrary and irrational and violate Article 14 of the Constitution of India. The reasoning for maintaining high level of academic proficiency and clinical expertise in the post of CNO is enumerated in Ext.P10 order issued by the 1[st] respondent. It is further observed that only through direct selection a candidate of high profile can be appointed. I do not find any justifiable reason to hold that insistence of a condition that the qualification of degree in B.Sc Nursing should have been a degree recognised by the Nursing Council and the University of Kerala, is totally irrational or unreasonable. Further, as already pointed out the petitioner is not challenging the notification. She had applied to WP(C). 11986 /2008 10 the post on two occasions knowing very well about prescription of the conditions and qualification therein. The petitioner cannot be permitted to challenge prescription of such conditions after being failed in securing the selection. Under the above mentioned circumstances the writ petition deserves no merit and the same is accordingly dismissed. C.K.ABDUL REHIM, JUDGE pmn/