SUMAN DEVI & ORS. versus STATE OF UTTARAKHAND AND ORS.

[2021] 3 S.C.R. 297

SUMAN DEVI & ORS.

STATE OF UTTARAKHAND AND ORS.

(Civil Appeal Nos. 000554-000557 of 2021)

MARCH 25, 2021

[L. NAGESWARA RAO AND S. RAVINDRA BHAT, JJ.]

Uttar Pradesh Department of Medical Health and FamilyWelfare Health Worker and Health Supervisor (Male and Female)Service Rules, 1997: r.5 – Advertisement for recruitment of AuxiliaryNurse Midwives (ANMs) issued by State of Uttrakhand – The 1997Rules were amended in 1998 to the effect that minimum qualificationsof intermediate or equivalent (10+2 from recognized board) inthe science stream were essential for recruitment and appointmentto the cadre of Female Health Workers and ANMs – Onreorganisation, State of Uttrakhand came into existence in 2000 –In 2016, advertisement issued by Uttrakhand Government invitingapplication for appointment of trained ANMs in terms of prevailingRules – Advertisement challenged on the ground that recruitment tothe extent it was contrary to Rules (as it did not specifically stipulatethat candidates with science in school were eligible and not others)be set aside – Held: comprehensive reading of the provisions ofthe Reorganization Act would show that the laws in force in theerstwhile State of UP continued to remain operative upon the creationof the new state of Uttarakhand – It is not disputed that the 1997Rules, after amendment in 1998, mandated that candidates desirousof being recruited as ANM or Health Workers had to possesseducational qualifications including Intermediate pass (or itsequivalent) with the science stream, apart from the necessary ANMcertificate course – That condition remained unchanged even afterthe creation of the State of Uttarakhand – There is no conflictbetween the provisions of the INC Act and the recruitment ruleswhich were in force in the State of Uttarakhand from the time of itscreation in 2000, till 2016 when the rules were changed after theadvertisement in question for the recruitments was issued – Therefore,the argument that the State was bound by the standards it specified(in the advertisement which had omitted any mention as to the

Aeducational qualification of intermediate with science) did not relievethe State from the obligation of enforcing statutory rules – IndianNursing Council Act, 1947.

Dismissing the appeals, the Court

HELD : 1. It is evident that in the present case, before theBformation of the state of Uttarakhand, rules which governedrecruitment and other conditions of service in relation to healthworkers and ANMs had been framed by the erstwhile state ofUttar Pradesh. Those rules were amended in 1998; the result ofthe amendment to the existing rules was that minimumCqualifications of intermediate or equivalent (10+2 from arecognized board) in the science stream were essential forrecruitment and appointment to the cadre of Female HealthWorkers and ANMs. Every candidate of course should havecompleted the ANM course with the mandatory training;nevertheless, the educational qualification of having completedDintermediate, in science, was essential. There is no merit in thesubmission of the appellants that the requirement of anintermediate in science stream did not exist, since the adaptationorder under the Reorganization Act omitted to mention the rulesframed by the erstwhile state of UP. [Para 26][312-E-G]E2. By virtue of Section 28 of the Reorganization Act, thenewly established Uttarakhand High Court had the jurisdiction,powers and authority in respect of the law in force, immediatelybefore the appointed day, which was exercisable by the AllahabadHigh Court. comprehensive reading of the provisions of theFReorganization Act would show that the laws in force in theerstwhile state of UP continued to remain operative upon thecreation of the new state of Uttarakhand. Section 87 only had theeffect of obliging the state and the courts to thereafter enforcethe existing laws, to the extent they were modified within periodof 2 years from the date of commencement of the ReorganizationGAct. If the appellants are correct, the mere omission of law orregulation in the adaptation order, would have the disastrous effectof creating vacuum in regard to existing laws that are notspecifically mentioned. In other words, the power to adapt onlymeant that such laws which required some modifications or

adaptations, could be so modified or adapted within the perioddefined, i.e., 2 years. In the absence of any such exercise ofadaptation or modification, all the laws, rules, regulations andstatutory orders that were in force in the state of UP appliedwithout 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 existingrules. It has not been disputed that the 1997 Rules, afteramendment in 1998, mandated that candidates desirous of beingrecruited as ANM or Health Workers had to possess educationalqualifications including Intermediate pass (or its equivalent) withthe science stream, apart from the necessary ANM certificatecourse. That condition remained unchanged even after thecreation of the State of Uttarakhand. It was only in 2016, after theadvertisement for the concerned recruitment was published, thatthe rules were changed; the changed new rules relieved therequirement of having to qualify the Intermediate level withscience subjects, for the period 2010-2013 and thereafter, afterJuly 2016. For all other periods, the basic educational qualificationof intermediate or equivalent pass with mandatory sciencestream qualification, remained an essential condition. Therefore,the argument that the state was bound by the standards itspecified (in the advertisement which had omitted any mentionas to the educational qualification of intermediate with science)did not relieve the state from the obligation of enforcing statutoryrules. It is too late in the day to assert that any kind of estoppelcan operate against the state to compel it to give effect to apromise contrary to law or prevailing rules that have statutoryforce. All arguments to this effect on the part of the appellantsare therefore rejected. Furthermore, the eligibility of candidateor applicant for public post or service, is to be adjudged as onthe last date of receipt of applications for such post or service, interms of the relevant advertisement, and the prevailing servicerules. [Para 29][314-C-H]

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

A4. In regard to the argument that the statutory rules framedby the erstwhile State of UP as applicable to the State ofUttarakhand, 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 central council, i.e. the Nursing Council, committedBto evolving uniform standards for nursing education in the country,and to provide for recognition of degrees and qualifications ofinstitutions and courses that cater to nursing. In the discharge ofits functions, the INC has prescribed mandatory ANM coursewith minimum training requirement. It is undisputed that allCthe appellants did undergo, at various points in time, educationand training from such recognized institutions. However, that isnot the end of the matter. The state in its legitimate role as apublic employer, is empowered by virtue of the proviso to Article309 of the Constitution of India, to frame appropriate rules. Theserules can prescribe conditions of service for various posts, classesDof posts, and services under the state. The conditions may includea minimum educational qualification which the state deemsappropriate for candidate to possess before he or she cancompete for particular post at the stage of recruitment. Thatthe INC Act allows the council to prescribe standards forEeducation, which it legitimately exercises for the purposes ofrecognizing nursing courses, in no way detracts or underminesthe authority of the state to prescribe other eligibility conditionswhich candidates can and should possess as condition precedentfor recruitment purposes, in the exercise of its power under theproviso to Article 309 of the Constitution. Therefore, there is noFconflict between the provisions of the INC Act and the recruitmentrules which were in force in the state of Uttarakhand from thetime of its creation in 2000, till 2016 when the rules were changedafter the advertisement in question for the recruitments wasissued. [Paras 30 and 31][315-C-G; 316-C]GSanjay Kumar Manjul v. UPSC (2006) 8 SCC 42 :[2006] 6 Suppl. SCR 72 – relied on.

5. Turning to the appellants’ argument regarding their rightto be appointed according to batch wise seniority, it is noticeablethat by Rule 5 of the old 1997 Rules, as amended, as well as inH

ABC

the 2016 Rules, there is no automatic recruitment; the post ofHealth Worker/ANM is to be filled by direct recruitment; theselection procedure is as contemplated by Rule 15 (as was thecase under the old rules), whereby three member selectioncommittee would recommend for selection, having due regard tothe year-wise allocation of vacancies, persons eligible forappointment, having regard to the qualifications held by them, bybatch-wise seniority (in the concerned ANM course with the dateson which training is completed). This mode of selection does noteliminate the requirement of the rule prescribing essentialqualifications; nor does it relieve any candidate from the obligationto apply for the post and face the scrutiny of the committee, forher candidature. In the present case, 440 vacancies wereadvertised; they were to be considered together; obviously, inrespect of older vacancies which arose for previous years, thequalifications applicable for the vacancy years were applicable.None of the appellants disputed that they were ineligible in termsof the old rules, as they did not hold the requisite intermediatequalifications 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) 4SCC 565 : [1979] 3 SCR 373 N.P.N. Devin Katti v.Karnataka Public Service Commission 1990) 3 SCC157 – referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 000554-000557 of 2021.

From the Judgment and Order dated 07.07.2017 of the High Courtof Uttarakhand at Nainital in Special Appeal No. 255 of 2017, SpecialAppeal No. 143 of 2017, Special Appeal No. 201 of 2017 and Civil WritPetition No. 1481 of 2017.

AWith

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, SudarshanBSingh Rawat, Jaswant Singh Rawat, Ms. Rachna Gandhi, M 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.CMahipal, Manan Verma, Advs. for the appearing parties.

The Judgment of the Court was delivered by

S. RAVINDRA BHAT, J.

Brief FactsD1. With consent of counsel for parties, the appeals were heardfinally.

2. The appellants, who are registered Auxiliary Nurse Midwives(hereafter “ANM”), complain that the Uttarakhand High Court’s ruling[1]regarding their ineligibility for appointment to the cadre of Family HealthEWorker (hereafter “FHW”), Auxiliary Nurse-Midwives (hereafter“ANM”) and Health Supervisor (hereafter “HS”) is erroneous. TheGovernment of Uttarakhand had advertised on 15.03.2016, 440 vacanciesof FHW (Female) and ANM, relative to several years’ backlog. Theadvertisements were challenged as being contrary to the recruitmentrules; the challenge was upheld by single judge (who allowed the writFpetitions) and whose decision was affirmed by the impugned judgment.

3. The erstwhile United Provinces enacted law, brought intoforce w.e.f. 25.08.1934 (hereafter called “the UP Law”).[2] The objectof the UP Law was to provide for registration of nursing profession.The UP Law was later amended, and definition of Auxiliary Nurse-GMidwife was inserted.

1 By judgment dated 7th July, 2017 in Special Appeal No. 156, 143, 150/2017 and otherconnected appeals and writ petitions

2 United Provinces Nurses, Midwives, Assistant Midwives (Auxiliary Nurse-MidwivesHand Health Visitors) Registration Act, 1934.

4. With effect from 31.12.1947, the Indian Nursing Council Act,1947 (hereafter called “the INC Act”) was brought into force. Itsobjective was to set up Central Council (hereafter “the council”) toestablish uniform standard of training for nurses, midwives and healthvisitors. Section 16 of the INC Act enables the council to prescribecurricula for training and conditions for admission; Section 10 of the Actenacted that qualifications included in Part I of the Schedule shall berecognized qualifications, and the qualifications included in Part II of theSchedule shall be recognized higher qualifications. The text of theprovision is extracted in the footnote below.[3 ]Section 11 stated that

3“10. Recognition of qualifications.––(1) For the purposes of this Act, the qualificationsincluded in 1 of the Schedule shall be recognised qualifications, and the qualificationsincluded in Part II of the Schedule shall be recognised higher qualifications.

(2) Any authority within the States which, being recognised by the StateGovernment in consultation with the State Council, if any, for the purpose of grantingany qualification, grants qualification in general nursing, midwifery, auxiliary nursing-midwifery, health visiting or public health nursing, not included in the Schedule mayapply to the Council to have such qualification recognised, and the Council may declarethat such qualification, or such qualification only when granted after specified date,shall be recognised qualification for the purposes of this Act.(3) The Council may enter into negotiations with any authority in any territoryof India to which this Act does not extend or foreign country which by the law of suchterritory or country is entrusted with the maintenance of register of nurses, midwivesor health visitors; for the settling of scheme of reciprocity for the recognition ofqualifications, and in pursuance of any such scheme the Council may declare that aqualification granted by any authority in any such territory or country, or suchqualification only when granted after specified date, shall be recognised qualificationfor the purposes of this Act;

Provided that no declaration shall be made under this sub-section in respect ofany qualification unless by the law and practice of the foreign country in which thequalification is granted persons domiciled or originating in India and holdingqualifications recognised under this Act are permitted to enter and practice the nursingprofession in that country;

Provided further that–– (i) any reciprocal arrangements subsisting at the dateof the commencement of this Act between State Council and any authority outside Indiafor the recognition of qualifications shall, unless the Council decides other wise, continuein force, and

(ii) any qualification granted by an authority in territory of India to which thisAct did not extend at the date of its commencement, and recognised on the said date bythe State Council of State to which this Act then extended, shall continue to be arecognised qualification for the purpose of registration in that State.

(4) The provisions of sub-sections (2) and (3) and of sections 14 and 15 shallapply mutatis mutandis to the declaration by the Council of qualification granted in respect of post-certificate nursing training as recognised higherqualifications.”

Anotwithstanding other laws, any recognized qualification was to besufficient qualification for enrolment in any State register. By Section11(1) (b), any individual not possessing the recognized qualifications couldnot be enrolled in any State register as nurse, midwife, auxiliary nurse-midwife, health supervisor etc. However, an exception was made throughthe proviso, for the continuation of those who had been registered priorBto the coming into force of the enactment. Section 15-A of the INC Actprovides for the establishment of an Indian Nurses Register to bemaintained by the council. Section 16 which is important for the purposeof this judgment, enables the council to frame regulations; the relevantpart is extracted in the footnote below.[4]C5. The composite State of Uttar Pradesh framed the Uttar PradeshDepartment of Medical Health and Family Welfare Health Worker andHealth Supervisor (Male and Female) Service Rules, 1997 (hereafterreferred to as the “1997 Rules”) under the proviso to Article 309 of theConstitution of India. Rule 5(1) of the 1997 Rules prescribed that directDrecruitment through the Public Service Commission of Health Worker(Male) would be from amongst such male candidates who successfullycomplete the one-year basic health worker training course conductedby the departmental divisional training centers of the state. Likewise,Rule 5(2) prescribed for direct recruitment through the Public ServiceCommission from amongst such female candidates who had successfullyEcompleted one year and half year basic mahila health worker trainingcourse (including six-month training related to deliveries) conducted bythe Uttar Pradesh Nurses and Midwives Council, Lucknow. Suchcandidates also had to be duly registered under the Uttar Pradesh Nursesand Midwives Council, Lucknow. Rule 8, which is relevant for theFpurpose of deciding this batch of appeals, reads as follows:

“Rule 8. Academic qualification – (i) candidate for DirectRecruitment to the post of Health Worker (Male) must have

4“16. Power to make regulations. ––(1) The Council may make regulations notinconsistent with this Act generally to carry out the provisions of this Act, and inparticular and without prejudice to the generality of the foregoing powers, such regulationsGmay provide for––

(g) prescribing the standard curricula for the training of nurses, midwives andhealth 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 beHsatisfied to secure for qualifications recognition under this Act.”

successfully completed prescribed training course for BasicHealth Worker (Male) conducted by the DepartmentalDivisional Training Centres (previously known as RegionalHealth and Family Welfare Training Centres) of the State ofUttar Pradesh.

(ii) candidate for Direct Recruitment to the post of HealthWorker (Female) must have successfully completed prescribedtraining course for Basic Health Worker (Female) conductedby the Uttar Pradesh Nurses and Midwives Council, Lucknowand is also duly registered in the Uttar Pradesh Nurses andMidwives Council, Lucknow.

Provided that after enforcement of Uttar Pradesh MedicalHealth and Family Welfare Department Health Workers andHealth Supervisors (Male & Female) Service (FirstAmendment) rules 1998, it is necessary that for selection forsuch training the candidate must pass the IntermediateExamination with Science subject of Secondary EducationBoard, U.P. or any examination equivalent thereto.”

6. The 1997 Rules were apparently amended in 1998. Rule 14which was substituted by this amendment reads as follows:

“Rule 14 (1) After enforcement of Uttar Pradesh MedicalHealth and Family Welfare Department Health Workers andHealth Supervisors (Male & Female) Service (FirstAmendment) rules 1998, the process of selection of candidatesfor training as prescribed under Rule 8, as amended fromtime to time (Uttar Pradesh Outside the Purview of PublicService Commission) Group ‘C’ shall be made under theprovisions provided under Direct Recruitment Rules, 1998.The number of candidates selected for training would be asper number of vacancies.

(2) Sub Rule (1) at the time of making selection under SubSection (1) the provisions of reservation shall be followed asprescribed in Rule 6.”

In the aforesaid rules in place of existing Rule 15 mentionedbelow in Column (1) shall be replaced with the rule mentionedin Column 2.”

A7. The State of Uttarakhand was formed pursuant to the re-organization of the State of U.P; the new state came into existence on09.11.2000. The laws in force in the erstwhile composite U.P. Statewere adopted and continued to remain in force in Uttarakhand. Thus,the 1997 Rules providing for recruitment of Health Worker (Male) andHealth Worker (Female), together with the 1998 amendments, continuedBto remain in force in Uttarakhand. In the meanwhile, on 02.01.2007, bya notification published in the Central Government Gazette, the regulationspublished by the council under Section 16 of the INC Act were broughtinto force; they stated that the basic educational qualification, in order tobe enrolled for the Nursing Auxiliary Programme was the SecondaryCSchool Certificate Examination. The relevant extract of the saidnotification is reproduced below:

“Secondary School Certificate Examination (10 yearscourse), 10[th] class or central board secondary education ora recognized equivalent public examination. Subjects of studyDmust be equivalents to those prescribed by the CBSE for theClass X with minimum 45%.”

8. The INC again amended the regulations on 21.10.2016. Theseamendments were made applicable with effect from July 2012. Thecourse was made into two-year course. The minimum qualificationEprovided for joining the course was to be 12 years of schooling. Therelevant extract of the said amended criteria is as follows:

“The minimum educational requirement shall be the passingof 12 years of schooling (10+2 year course) recognised byCBSE/ICSE/SSSCE/HSCE or recognised equivalentexamination.”F

9. It is in this background that on 15.03.2016, an advertisementwas issued by the Uttarakhand Government inviting applications forappointment of trained ANMs in terms of the prevailing rules. However,the appointment did not spell out that the candidates ought to have finishedGtheir schooling with science as subject. The relevant eligibility criteriain the said advertisement read as follows:

“Eligibility Criteria:

Candidate must have acquired educational qualificationsprescribed by Indian Nursing Council, New Delhi.

Candidate must be registered with Uttarakhand Nurses andMidwives Council, Dehradun.

Photocopies of the statement of marks and the certificatesshall be attached.”

10. Soon after the advertisement was issued, the UttarakhandMedical 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 replacedthe 1997 Rules. The Rules significantly amended the eligibility criteria ina graded manner for different years. Rule 8(2) which is relevant for thepurpose of the present discussion reads as follows:

“–Rule8(2) Health Worker (Female)

(i) candidate must pass intermediate education ofUttarakhand Board and successfully completed two yearcourse of Basic Health Worker (Female) training (includingsix months delivery training) or equivalent recognisedqualification by the State Government.

(ii) But for the selection year 2010 to 2013 those applicantswho has passed 10[th] class examination from Board of HighSchool and successfully completed 18 months course of BasicHealth Worker (Female) training (including six monthsdelivery training) or equivalent recognized qualification bythe State Government.

(iii) The Candidate has passed Intermediate Examination(Science Stream) of the Uttarakhand Board or any otherequivalent qualification; in addition to which the candidatesmust have successfully completed 18 months course of BasicHealth Worker (Female) training (including six monthsdelivery training) or equivalent recognized qualification priorto the selection year 2010.

(iv) The candidate must be duly registered in the Nurses andMidwifery Council of Uttarakhand.”

11. Writ petitions were preferred before the Uttarakhand HighCourt, questioning the advertisement and seeking direction that therecruitment, to the extent it was contrary to the rules (as it had notspecifically stipulated that candidates with science in the school were

Aeligible, and not others) be set aside. learned single judge of the HighCourt, after issuing notice to the state and hearing the parties, allowedthose writ petitions. The present appellants approached the DivisionBench, aggrieved by that decision, contending that the advertisementwas correctly framed because the INC’s regulations did not requirescience as an essential subject in the qualifying 10[th] standard, or 12[th]Bstandard examination, and that they had been registered in terms of theINC’s regulations. They contended, therefore, that the single judge erredin holding that they were ineligible.

Contentions of parties

C12. It is contended by Ms. V. Mohana, learned senior counsel forthe appellants that they had qualified in the Intermediate level at therelevant times in Arts. These appellants also underwent the same syllabusand training as the candidates who had passed Intermediate in Science.She urged that rather than requiring that those qualified for admission tothe ANM Course should have qualified Intermediate in Science, theDState should have adopted rational principle such as inter se meritamong the candidates, in the completion of the concerned courses. Itwas urged that that there is no intelligible differentia distinguishing studentswith Intermediate in Arts and those who have done Intermediate inScience, nor is there any rational nexus with the object sought to beEachieved. The insistence of the science subject amongst two personsfalling 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 toprovide equal opportunity to all. It is submitted that the result of theFstatutory rule contained in the proviso limiting the persons qualified toundergo the ANM course, to those who have done Intermediate inScience, is to offend the right to equality. The result of the rule is that itdoes not permit person to work in the State of Uttarakhand as HealthWorker for the mere reason that the person has done Intermediate inArts. The appellants also submit that there is legitimate expectationGthat having completed the course of ANM, they would be consideredfor employment in Uttarakhand, given that they were registered.

14. It was further argued that having regard to the provisions ofthe 1947 Act, which is central enactment traceable to Entry 66 of ListI of the Seventh Schedule, for the purpose of attaining uniformity inH

standards of education, when the Centre has prescribed uniform normfor getting admitted to the ANM Course, the states cannot prescribe adifferent criteria for recruitment to their posts or cadres, and excludethe appellants who conform to the requirements under the 1947 Act. Itwas pointed out that regulations were framed under Section 16 of the1947 Act, and that the prescription confining eligibility to those who havecompleted Intermediate in Science, was untenable.

15. It was argued that there was no whisper in the impugnedadvertisement that the 1997 Rules would apply. Counsel relied on Articles15(2) and 16(2) in regard to the advertisement pursuant to which thepetitioners[5] applied (the case of the appellants is that they had appliedpursuant to the said advertisement and were selected for training onthe said basis). The advertisement appears to provide as condition thatthe candidate should be resident of 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 contemplatestraining imparted by the Uttar Pradesh Nurses and Midwives Council,there was actually no training imparted by the UP Nurses and MidwivesCouncil; that training was by some other body. The rule was therefore,rendered unworkable.

17. Relying upon the judgment in Desh Bandhu Gupta v. DelhiStock Exchange[6], it was argued that the conditions spelt out in theadvertisement as the eligibility norms for purposes of recruitment had tobe given effect to. Further, relying upon the subsequent decision of thisCourt in N.P.N. Devin Katti v. Karnataka Public Service Commission[7],learned senior counsel urged that the criteria and conditions spelt out inthe advertisement would continue to bind the State till the end of theselection or the recruitment, as the case may be, and any interveningand subsequent change in the rule position would not affect the ongoingrecruitment process. It was subsequently urged, therefore, that sincethe advertisement was issued on 15.03.2016, the subsequent amendmentwhich came into force on 26.07.2016 could not be made applicable. Inshort, it was urged that the State was bound by the standards it prescribed– in this case, the conditions spelt out in the advertisement never statedthat to be considered eligible, qualified and registered ANM should

5 Who were petitioners in Writ Petition (S/S) No. 647 of 2016.

6 (1979) 4 SCC 565

7 (1990) 3 SCC 157

Ahave completed or graduated with intermediate/10+2 examination in theScience stream.

18. Other counsel appearing for the appellants urged that some ofthe appellants had undergone the ANM Course in training institutes inthe State of Uttarakhand and others had obtained ANM certificatesBfrom different states. It was submitted that the training institutes invitedapplications and, though the appellants had completed Intermediate inArts, they were enrolled on the ANM course, which they successfullycompleted, as they did with the training programme. In thesecircumstances, the state could not discriminate against them. It wasargued that, after having imparted training, these appellants could not beCdenied appointment.

19. Counsel further submitted that the adoption order issued underSection 87 of the U.P. Reorganisation Act, 2000, did not expressly referto the amendment by which the proviso was inserted on 10.09.1998. Itwas argued that the advertisement prescribed that candidates shouldDpossess the qualifications prescribed by the INC, which the appellantsdid. Consequently, there could have been no valid basis to reject theircandidature.

20. It was lastly urged that given that all the appellants had qualifiedpreviously and were waiting for selection and furthermore that manypersons on the rolls of the government and working as ANMs had notEqualified in Science, it would be unfair and discriminatory to exclude theappellants and not consider their candidature.

21. The learned AAG who argued on behalf of the State submittedthat undoubtedly, the advertisement was issued on 15.03.2016. He,however, emphasized the fact that the 1997 Rules as amended in 1998F(more particularly, Rule 8) held the field. Repelling the arguments onbehalf of the appellants that the U.P. Reorganization Act did not specificallyadopt the Rules, he urged that there was nothing to the contrary in Section87 of the Reorganization Act or any adopted order. It was submitted thatthe Uttarakhand Government had not made any regular selection frominception. Given the position in the recruitment rules, registered ANMsGwho had qualified in their intermediate examinations or school boards inthe science stream were alone eligible for consideration. He submittedfurther that there is no automatic appointment merely on the strength ofhaving qualified in the ANM examination and having undergone thetraining or for that matter having been registered, and that the concernedHselection committee constituted under the Rules was under duty toconsider applications on the basis of batch wise seniority and those eligible“in accordance with the Rules” could be recommended for appointment.He relied upon Rule 15 in this regard.

22. Learned counsel for the State submitted that for the purposesof recruitment to civil posts or services within the State, the state has thecompetence to prescribe eligibility conditions. The question of the rulesin the present case conflicting with the standards prescribed under the1947 Act cannot arise. It was submitted in this regard that the saidenactment sets up the Nursing Council, which under Section 16, prescribesthe regulations/standards which institutions must fulfill, in order for theircourses to be recognized. However, whether the holding of suchqualifications per se binds the State to accept them or prescribe additionalqualifications or experience for employment within the State is exclusivelythat of the State’s domain. In exercise of this power, the State iscompetent to prescribe recruitment rules as it did, as the erstwhile Stateof U.P. did in 1997 when Rule 8 along with other rules were brought intoforce and subsequently amended in 1998. That rule specifically statedthat apart from completing the ANM course, to be eligible for appointmentas an ANM in the Uttarakhand Government or its institutions, theconcerned candidate also should have qualified in the Science Stream atthe 10+2 or equivalent level of education. It was submitted that thiscondition is reasonable and cannot, by any stretch of imagination bedeemed to be repugnant to the provisions of the 1947 Act. The 1947 Actonly applies to standards prescribed by the Nursing Council. That councildoes not have the competence to prescribe the conditions for employmentin any given State.

23. It was argued that the applicability or otherwise of the 2016Rules was neither pleaded nor urged before the High Court. Learnedcounsel emphasized that close reading of the said Rules, especiallyRule 8 would show that prior to 2010, the rule position was that to beconsidered for appointment as ANM, the candidate should have qualifiedin the concerned course and also graduated with Science in the schoolboard/intermediate. For the brief period between 2010 and 2013, theinsistence on qualifying in the science stream was relieved and insteadof the 10+2 or intermediate qualification, candidates who had passed the10[th] standard with requisite ANM completion certification and trainingwere deemed eligible. In other words, for the three year period up to2013, candidate was not required to have qualified in the 12[th] standardin the science stream. For the period 2013-2016, candidates could applyonly if they had an intermediate or equivalent qualification – with science

Asubjects, together with ANM qualification and training. Only with theadvent of the 2016 Rules (with effect from 26.07.2016) were those withIntermediate qualification not necessarily with science, but also qualifyingin recognized ANM course with requisite training deemed eligible. Itwas argued that since none of the petitioners fell in the category ofthose qualified between 2010-2013, but rather had completed theirBIntermediate and the relevant ANM course with training prior to 2010 orafter 2013, the question of their being eligible did not arise.

24. It was argued that the State could not be faulted nor bounddown by the omission to advert to the relevant eligibility criteria in theadvertisement. In this regard, it was submitted that the advertisementitself spelt out that the concerned recruitment would be in accordanceCwith the prevailing rules[8].

25. It was submitted that the new rules did not indicate that theywere retrospective and consequently could not have applied to theappellants or the ongoing recruitment, in which case only could theappellants or some of them be deemed eligible. It was submitted that theDentire claim of the appellants were the eligibility conditions specified inpara 3 of the advertisement. Lastly, it was urged that neither were therules nor was the advertisement challenged and in these circumstances,the question of any condition being discriminatory did not arise.

Analysis and Conclusions

26. From the above factual narration, it is evident that in the presentEcase, before the formation of the state of Uttarakhand, rules whichgoverned recruitment and other conditions of service in relation to healthworkers and ANMs had been framed by the erstwhile state of UttarPradesh. Those rules were amended in 1998; the result of the amendmentto the existing rules was that minimum qualifications of intermediate orFequivalent (10+2 from recognized board) in the science stream wereessential for recruitment and appointment to the cadre of Female HealthWorkers and ANMs. Every candidate of course should have completedthe ANM course with the mandatory training; nevertheless, theeducational qualification of having completed intermediate, in science,was essential. This court finds no merit in the submission of the appellantsGthat the requirement of an intermediate in science stream did not exist,since the adaptation order under the Reorganization Act omitted tomention the rules framed by the erstwhile state of UP. Sections 87 and88 of the Reorganization Act read as follows:

8 The concerned condition in the advertisement reads as follows:

“7. Selection: Selection on above posts shall be done under provisions of relevantHDepartmental Service Regulations.”

“87. Power to adapt laws.—For the purpose of facilitatingthe application in relation to the State of Uttar Pradesh orUttaranchal of any law made before the appointed day, theappropriate Government may, before the expiration of twoyears from that day, by order, make such adaptations andmodifications of the law, whether by way of repeal oramendment, as may be necessary or expedient, and thereuponevery such law shall have effect subject to the adaptationsand modifications so made until altered, repealed or amendedby competent Legislature or other competent authority.Explanation.—In this section, the expression “appropriateGovernment” means as respects any law relating to matterenumerated in the Union List, the Central Government, andas respects any other law in its application to State, theState Government.

88. Power to construe laws.—Notwithstanding that noprovision or insufficient provision has been made undersection 87 for the adaptation of law made before theappointed day, any court, tribunal or authority, required orempowered to enforce such law may, for the purpose offacilitating its application in relation to the State of UttarPradesh or Uttaranchal, construe the law in such manner,without affecting the substance, as may be necessary orproper in regard to the matter before the court, tribunal orauthority.”

27. By virtue of Section 28 of the Reorganization Act[9], the newlyestablished Uttarakhand High Court had the jurisdiction, powers andauthority in respect of the law in force, immediately before the appointedday,which was exercisable by the Allahabad High Court.

28. comprehensive reading of the provisions of theReorganization Act would show that the laws in force in the erstwhilestate of UP continued to remain operative upon the creation of the newstate of Uttarakhand. Section 87 only had the effect of obliging the stateand the courts to thereafter enforce the existing laws, to the extent theywere modified within period of 2 years from the date of commencement

9 28. Jurisdiction of Uttaranchal High Court.—The High Court of Uttaranchal shallhave, in respect of any part of the territories included in the State of Uttaranchal, allsuch jurisdiction, powers and authority as, under the law in force immediately beforethe appointed day, are exercisable in respect of that part of the said territories by theHigh Court at Allahabad.

Aof the Reorganization Act. If the appellants are correct, the mere omissionof law or regulation in the adaptation order, would have the disastrouseffect of creating vacuum in regard to existing laws that are notspecifically mentioned. In other words, the power to adapt only meantthat such laws which required some modifications or adaptations, couldbe so modified or adapted within the period defined, i.e., 2 years. In theBabsence of any such exercise of adaptation or modification, all the laws,rules, regulations and statutory orders that were in force in the state ofUP applied without any change.

29. This court holds to be unmerited, the arguments of the appellantthat the state was bound by the criteria specified in the advertisementCissued by it in March 2016, even though Clause 7 of that notificationclearly specified that the recruitments for ANMs would be in accordancewith the statutory rules. The omission to mention the relevant qualifications(i.e. intermediate or equivalent qualification with the science stream) didnot relieve the state from its obligation to follow existing rules. It has notbeen disputed that the 1997 Rules, after amendment in 1998, mandatedDthat candidates desirous of being recruited as ANM or Health Workershad to possess educational qualifications including Intermediate pass (orits equivalent) with the science stream, apart from the necessary ANMcertificate course. That condition remained unchanged even after thecreation of the State of Uttarakhand. It was only in 2016, after theadvertisement for the concerned recruitment was published, that theErules were changed; the changed new rules relieved the requirement ofhaving to qualify the Intermediate level with science subjects, for theperiod 2010-2013 and thereafter, after July 2016. For all other periods,the basic educational qualification of intermediate or equivalent passwith mandatory science stream qualification, remained an essentialFcondition. Therefore, the argument that the state was bound by thestandards it specified (in the advertisement which had omitted anymention 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 operateagainst the state to compel it to give effect to promise contrary to lawGor prevailing rules that have statutory force. All arguments to this effecton the part of the appellants are therefore rejected. Furthermore, it isuseful to recollect that the eligibility of candidate or applicant for apublic post or service, is to be adjudged as on the last date of receipt ofapplications for such post or service, in terms of the relevantadvertisement, and the prevailing service rules. This position is recognizedH

by settled authority; in Ashok Kumar Sharma v. Chander Shekhar[10] athree-judge bench of this court ruled, in this context that:

“6. The proposition that where applications are called forprescribing particular date as the last date for filing theapplications, the eligibility of the candidates shall have to bejudged with reference to that date and that date alone, is awell-established one. person who acquires the prescribedqualification subsequent to such prescribed date cannot beconsidered at all. An advertisement or notification issued/published calling for applications constitutes representationto the public and the authority issuing it is bound by suchrepresentation. It cannot act contrary to it.”

30. In regard to the argument that the statutory rules framed bythe erstwhile State of UP as applicable to the State of Uttarakhand,were contrary to the provisions of the INC Act, this court holds thesubmission to be insubstantial and unmerited. The objective of the INCAct - as indeed its provisions testify - are to set up central council, i.e.the Nursing Council, committed to evolving uniform standards for nursingeducation in the country, and to provide for recognition of degrees andqualifications of institutions and courses that cater to nursing. In thedischarge of its functions, the INC has prescribed mandatory ANMcourse with minimum training requirement. It is undisputed that all theappellants did undergo, at various points in time, education and trainingfrom such recognized institutions. However, that is not the end of thematter. The state in its legitimate role as public employer, is empoweredby virtue of the proviso to Article 309 of the Constitution of India, toframe appropriate rules. These rules can prescribe conditions of servicefor various posts, classes of posts, and services under the state. Theconditions may include minimum educational qualification which thestate deems appropriate for candidate to possess before he or she cancompete for particular post at the stage of recruitment. That the INCAct allows the council to prescribe standards for education, which itlegitimately exercises for the purposes of recognizing nursing courses,in no way detracts or undermines the authority of the state to prescribeother eligibility conditions which candidates can and should possess as acondition precedent for recruitment purposes, in the exercise of its powerunder the proviso to Article 309 of the Constitution. As held in SanjayKumar Manjul v. UPSC[11]

10 (1997) 4 SCC 18

11 (2006) 8 SCC 42

A“25. The statutory authority is entitled to frame the statutoryrules laying down the terms and conditions of service as alsothe qualifications essential for holding particular post. It isonly the authority concerned which can take ultimate decisiontherefore.**** **** **** ****B26. The jurisdiction of the superior courts, it is trite law,would be to interpret the rule and not to supplant or supplementthe same.”

31. Therefore, this court perceives no conflict between theprovisions of the INC Act and the recruitment rules which were in forceCin the state of Uttarakhand from the time of its creation in 2000, till 2016when the rules were changed after the advertisement in question for therecruitments was issued, which this court is now called upon to adjudicate.32. Turning to the appellants’ argument regarding their right tobe appointed according to batch wise seniority, it is noticeable that byRule 5 of the old 1997 Rules, as amended, as well as in the 2016 Rules,Dthere is no automatic recruitment; the post of Health Worker/ANM is tobe filled by direct recruitment; the selection procedure is as contemplatedby Rule 15 (as was the case under the old rules), whereby threemember selection committee would recommend for selection, havingdue regard to the year-wise allocation of vacancies, persons eligible forEappointment, having regard to the qualifications held by them, by batch-wise seniority (in the concerned ANM course with the dates on whichtraining is completed). This mode of selection does not eliminate therequirement of the rule prescribing essential qualifications; nor does itrelieve any candidate from the obligation to apply for the post and facethe scrutiny of the committee, for her candidature. In the present case,F440 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. Noneof the appellants disputed that they were ineligible in terms of the oldrules, as they did not hold the requisite intermediate qualifications in thescience stream. The appellants’ contention, in this regard too, consequentlyGfails.33. In view of the foregoing conclusions, there is no merit in theseappeals; they are dismissed without any order on costs.

Devika Gujral