IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 5TH JANUARY 2010 / 15TH POUSHA 1931
WA.No. 2730 of 2009
--------------------AGAINST THE JUDGEMENT IN WPC.29926/2009 Dated 23/11/2009
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APPELLANT/PETITIONER:
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LATHAKUMARI P.S, KUNNUMALASSERI, THALAYAR, KUTTOOR PO, THIRUVALLA 689 106.
BY ADV. SMT.P.V.ASHA
RESPONDENT(S)/RESPONDENTS:
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1. KERALA PUBLIC SERVICE COMMISSION REPRESENTED BY ITS SECRETARY, PATTOM THIRUVANANTHAPURAM-4.
2. DISTRICT OFFICER, KERALA PUBLIC SERVICE COMMISSION, ALAPPUZHA.
3. KERALA NURSES AND MIDWIVES COUNCIL, REPRESENTED BY REGISTRAR, RED CROSS ROAD THIRUVANANTHAPURAM 695 035.
4. DISTRICT MEDICAL OFFICER OF HEALTH, ALAPPUZHA.
5. STATE OF KERALA, RERPESENTED BY SECRETARY TO GOVT., DEPARTMENT OF HEALTH & FAMILY WELFARE, SECRETARIAT, THIRUVANANTHAPURAM.
BY GOVERNMENT PLEADER SMT.R.BINDU FOR R4 & R5 SRI.N.REGHURAJ FOR R3 SRI.ALEXANDER THOMAS, SC FOR R1 & R2
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 05/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
## **K. BALAKRISHNAN NAIR & C.T.RAVIKUMAR, JJ.**
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## W.A.NO.2730/2009
## **------------------------------**
Dated this, the 5[th] day of January, 2010
## **JUDGMENT**
## **Balakrishnan Nair, J.**
The writ petitioner is the appellant. She was an applicant for the post of Junior Public Health Nurse Grade II in the Department of Health Services, when applications were invited for the same by the Public Service Commission (for short “PSC”) by Ext.P2 notification. She participated in the written test and in the short list published by the PSC, she was included in the supplementary list for O.B.C. But, later, it was found by the PSC that she did not have registration with the Kerala Nurses and Midwives Council on 17.10.2007, the last date fixed
for receipt of applications as per Ext.P2. Therefore, she was held to be not qualified and was not included in Ext.P8 rank-list published by the PSC for the said post. Challenging noninclusion of her name in Ext.P8 and seeking consequential reliefs, the Writ Petition was filed.
2. It is common ground that one of the qualifications
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prescribed for the post is registration with the Kerala Nurses and Midwives Council. It is also common ground that on 17.10.2007, she did not have registration with the said Council. As evident from Ext.P7, she was qualified to practice, as she was having registration in Rajasthan from 23.3.1994. She submitted an application for registration with the Kerala Council on 26.12.2006. The application was finally allowed, as evident from Exts.P5 and P7, on 31.12.2007. So, it is not in dispute that the appellant did not have registration with the Kerala Nurses and Midwives Council on the last date for receipt of applications. A candidate, who does not have the prescribed qualification as per the Special Rules on the last date for receipt of applications, is ineligible to apply for the post. It is the settled position in law and it is the stand taken by the PSC. Clause 19 of the General Conditions of Ext.P2 notification also contains this stipulation. Further, it is a well-settled position in law that the relevant date for determining the qualification of the applicant is the last date for receipt of applications, unless otherwise specified. In view of the above facts, we find nothing
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wrong with the stand of the PSC. It is bound by the provisions of the Special Rules. It has got no power or authority to ignore or relax the provisions of the rules. The State Government also supports the said stand.
3. But, the learned counsel for the appellant submitted that in the case of other Departments, for the very same post and also for the post of Staff Nurse, the Registration Certificate issued by the Kerala Council need be produced only before joining service. In other words, the applicants need not have Kerala Registration on the last date for receipt of applications. When such a benefit is granted to similarly placed candidates who apply for appointment in the same or other Departments, there is no reason why the said benefit should not be extended to the candidates who apply for the post of Junior Public Health Nurse Grade II in the Health Services Department. But, we find that the appellant has not challenged the above stipulation contained in the Special Rules. In the absence of any challenge to the said stipulation in the Special Rules, the appellant, the State and the PSC are bound by the sane.
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4. But, the learned counsel for the appellant submitted that she has canvassed the invalidity of the rules in Grounds F and G in the appeal memorandum. Those grounds are quoted below for convenient reference:
“F. If at all it was found that the qualification viz. Registration with the Council in Kerala was mandatory as on the date of application, as per the Special Rules, the learned Single Judge ought to have found that such a provision in the Special Rules is illegal and arbitrary, at least in the cases of persons like appellant. When registration with the council is the authority to practice as Nurse or Midwife and when that authority to practice is provided to those with registration from outside, pending their applications, there is no rationale in insisting registration at the time of submitting application for appointment to the post. Rejection of the candidature for selection and appointment as JPHN Gr.II for not having the certificate, which is only the authority to practice, when the candidate is expected to practice only after entry in service and that too when that candidate is having the authority to practice as Nurse or Midwife pending decision on her application by virtue of Sec.32 of the Travancore
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Cochin Nurses & Midwives Act, even on the date of her application, is highly unfair and unjust. There is absolutely no reasonable nexus with the object sought to be achieved in debarring such applicants at a time when they are permitted to practice the profession. The Special Rules to the extent it can be interpreted to mean that the qualification viz. Registration with Kerala Nurses & Midwives Council is mandatory as on the date of application even to person with registration from other States is discriminatory, arbitrary and illegal.
G. Equals are treated unequally or unequals are treated equally treating persons like appellant on par with freshers who do not have any registration at all, in total derogation of the fundamental rights of appellant in violation of her fundamental rights under Articles 14 and 16 of the Constitution of India. To say that a person who can validly practice as a Nurse cannot submit application for appointment to that very same post is arbitrary, unreasonable and illegal. No purpose is achieved by insisting such registration as on date of application, except to deny opportunity to candidates with outside registration.”
But, we notice that a subordinate legislation can be impugned only on limited grounds. A Division Bench of this Court in
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**Pankajaksy v. George Mathew** [1987(2) KLT 723] had summarised the grounds available for impugning a subordinate legislation. The relevant portion of the judgment reads as follows:
“12. Thus, the rule made under a statute by an authority delegated for the purpose can be challenged on the ground (1) that it is ultra vires of the Act; (2) it is opposed to the Fundamental rights; (3) it is opposed to other plenary laws. To ascertain whether a rule is ultra vires of the Act, the Court can go into the question (a) whether it contravenes expressly or impliedly any of the provisions of the statute; (b) whether it achieves the intent and object of the Act; and (c) whether it is 'unreasonable' to be manifestly arbitrary, unjust or partial implying thereby want of authority to make such rules.”
Going by the principles laid down in the above decision, we find that no ground has been made out in the above quoted grounds, to interfere with the rules, even assuming there was a prayer challenging the relevant provision of the rule. In the case of some or similar posts, the Government decided, while framing the Special Rules, to grant relaxation for producing the
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Registration Certificate issued by the Kerala Council till the date of joining duty. In the case of the present post, the Government did not give any such relaxation. Such a stand cannot be described as without authority and therefore, ultra vires. The same is an area of policy where the Government should take the decision as the delegate of the legislature. The High Court, while sitting under Article 226 of the Constitution of India, cannot re-draft the rules according to its opinion. In this context, we notice the contention of the learned counsel for the appellant that the rules should be interpreted in such a way as to enable the incumbents, who apply for the post, to get time for obtaining the Kerala Registration till they join duty. Since there is no ambiguity in the rules, there is no necessity for interpreting the rules. As we are of the view that the said rule does not go against any plenary statutory provision or constitutional provision, there is no necessity to read it down, as suggested by the appellant.
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In the result, the Writ Appeal fails and it is dismissed.
**K. Balakrishnan Nair, Judge.**
**C.T.Ravikumar, Judge.**
**nm.**
