Suman Devi & Ors. vs State of Uttarakhand and Ors.

HELD : 1. It is evident that in the present case, before the formation of the state of Uttarakhand, rules which governed recruitment and other conditions of service in relation to health workers and ANMs had been framed by the erstwhile state of Uttar Pradesh. Those rules were amended in 1998; the result of the amendment to the existing rules was that minimum qualifications of intermediate or equivalent (10+2 from a recognized board) in the science stream were essential for recruitment and appointment to the cadre of Female Health Workers and ANMs. Every candidate of course should have completed the ANM course with the mandatory training; nevertheless, the educational qualification of having completed intermediate, in science, was essential. There is no merit in the submission of the appellants that the requirement of an intermediate in science stream did not exist, since the adaptation order under the Reorganization Act omitted to mention the rules framed by the erstwhile state of UP. [Para 26][312-E-G]

2. By virtue of Section 28 of the Reorganization Act, the newly established Uttarakhand High Court had the jurisdiction, powers and authority in respect of the law in force, immediately before the appointed day, which was exercisable by the Allahabad High Court. A comprehensive reading of the provisions of the Reorganization Act would show that the laws in force in the erstwhile state of UP continued to remain operative upon the creation of the new state of Uttarakhand. Section 87 only had the effect of obliging the state and the courts to thereafter enforce the existing laws, to the extent they were modified within a period of 2 years from the date of commencement of the Reorganization Act. If the appellants are correct, the mere omission of a law or regulation in the adaptation order, would have the disastrous effect of creating a vacuum in regard to existing laws that are not specifically mentioned. In other words, the power to adapt only meant that such laws which required some modifications or AND ORS.

adaptations, could be so modified or adapted within the period defined, i.e., 2 years. In the absence of any such exercise of adaptation or modification, all the laws, rules, regulations and statutory orders that were in force in the state of UP applied without any change. [Paras 27 and 28][313-E-G; 314-A-B]

3. The omission to mention the relevant qualifications (i.e. intermediate or equivalent qualification with the science stream) did not relieve the state from its obligation to follow existing rules. It has not been disputed that the 1997 Rules, after amendment in 1998, mandated that candidates desirous of being recruited as ANM or Health Workers had to possess educational qualifications including Intermediate pass (or its equivalent) with the science stream, apart from the necessary ANM certificate course. That condition remained unchanged even after the creation of the State of Uttarakhand. It was only in 2016, after the advertisement for the concerned recruitment was published, that the rules were changed; the changed new rules relieved the requirement of having to qualify the Intermediate level with science subjects, for the period 2010-2013 and thereafter, after July 2016. For all other periods, the basic educational qualification of intermediate or equivalent pass with a mandatory science stream qualification, remained an essential condition. Therefore, the argument that the state was bound by the standards it specified (in the advertisement which had omitted any mention as to the educational qualification of intermediate with science) did not relieve the state from the obligation of enforcing statutory rules. It is too late in the day to assert that any kind of estoppel can operate against the state to compel it to give effect to a promise contrary to law or prevailing rules that have statutory force. All arguments to this effect on the part of the appellants are therefore rejected. Furthermore, the eligibility of a candidate or applicant for a public post or service, is to be adjudged as on the last date of receipt of applications for such post or service, in terms of the relevant advertisement, and the prevailing service rules. [Para 29][314-C-H]

Ashok Kumar Sharma v. Chander Shekhar (1997) 4 SCC 18 : [1997] 2 SCR 896 – followed.

4. In regard to the argument that the statutory rules framed by the erstwhile State of UP as applicable to the State of Uttarakhand, were contrary to the provisions of the INC Act, this court holds the submission to be insubstantial and unmerited. The objective of the INC Act - as indeed its provisions testify are to set up a central council, i.e. the Nursing Council, committed to evolving uniform standards for nursing education in the country, and to provide for recognition of degrees and qualifications of institutions and courses that cater to nursing. In the discharge of its functions, the INC has prescribed a mandatory ANM course with a minimum training requirement. It is undisputed that all the appellants did undergo, at various points in time, education and training from such recognized institutions. However, that is not the end of the matter. The state in its legitimate role as a public employer, is empowered by virtue of the proviso to Article

309 of the Constitution of India, to frame appropriate rules. These rules can prescribe conditions of service for various posts, classes of posts, and services under the state. The conditions may include a minimum educational qualification which the state deems appropriate for a candidate to possess before he or she can compete for a particular post at the stage of recruitment. That the INC Act allows the council to prescribe standards for education, which it legitimately exercises for the purposes of recognizing nursing courses, in no way detracts or undermines the authority of the state to prescribe other eligibility conditions which candidates can and should possess as a condition precedent for recruitment purposes, in the exercise of its power under the proviso to Article 309 of the Constitution. Therefore, there is no conflict between the provisions of the INC Act and the recruitment rules which were in force in the state of Uttarakhand from the time of its creation in 2000, till 2016 when the rules were changed after the advertisement in question for the recruitments was issued. [Paras 30 and 31][315-C-G; 316-C]

Sanjay Kumar Manjul v. UPSC (2006) 8 SCC 42 :

[2006] 6 Suppl. SCR 72 – relied on.

5. Turning to the appellants’ argument regarding their right to be appointed according to batch wise seniority, it is noticeable that by Rule 5 of the old 1997 Rules, as amended, as well as in AND ORS.

the 2016 Rules, there is no automatic recruitment; the post of Health Worker/ANM is to be filled by direct recruitment; the selection procedure is as contemplated by Rule 15 (as was the case under the old rules), whereby a three member selection committee would recommend for selection, having due regard to the year-wise allocation of vacancies, persons eligible for appointment, having regard to the qualifications held by them, by batch-wise seniority (in the concerned ANM course with the dates on which training is completed). This mode of selection does not eliminate the requirement of the rule prescribing essential qualifications; nor does it relieve any candidate from the obligation to apply for the post and face the scrutiny of the committee, for her candidature. In the present case, 440 vacancies were advertised; they were to be considered together; obviously, in respect of older vacancies which arose for previous years, the qualifications applicable for the vacancy years were applicable. None of the appellants disputed that they were ineligible in terms of the old rules, as they did not hold the requisite intermediate qualifications in the science stream. The appellants’ contention, in this regard too, consequently fails. [Para 32][316-D-G]

Desh Bandhu Gupta v. Delhi Stock Exchange (1979) 4 SCC 565 : [1979] 3 SCR 373 N.P.N. Devin Katti v. Karnataka Public Service Commission 1990) 3 SCC

157 – referred to.