INDURANI Vs. STATE OF BIHAR

JUDGEMENT

(1.) The petitioner through this writ application prays for issuance of a direction to the Respondent to appoint her as an Auxiliary Nursing Mid-Wife (hereinafter referred to as A. N. M. for the sake of brevity).

(2.) Relevant facts as stated by the petitioner in her writ application and four supplementary affidavits are to this effect. Raj A. N. M. Training School, Muzaffarpur is a recognized institution. The recognition was granted by Government of Bihar, Patna vide Memo No. 397 (6), dated 29-3-1989 (as contained in Annexure-2) of the Joint Director, Health, Government of Bihar, Patna. In view of the aforementioned recognition the Bihar Nurses' Registration Council, Patna also accorded permission to the Students of Raj A. N. M. Training School, Muzaffarpur to appear in the examination. The Bihar Nurses' Registration Council, Patna also accorded temporary recognition (affiliation) vide Momo No. 22/B N. R. C. dated 31-7-1990 (as contained in Annexure-12). Under the Bihar and Orissa Nurses' Registration Act, 1935, the State Government is empowered to recognize nurses training institute. The Bihar Nurses' Registration Council is empowered to affiliate a recognized Institute for the purpose of conducting Nursing examination. Vide notification bearing Memo No. 17832 dated 18-6-1955 of the Health Department, Government of Bihar (as contained in Annexure-13) all successful trainees are entitled to be absorbed in the services of the State Government against the posts of A. N. M. The trainees of Kurji Holy Family Hospital A. N. M. School, Patna were appointed on the post of A. N. M. earlier which is also a recognized Institution. In the State of Bihar the examination of A. N. M. course and General Nursing and Mid-Wifery Course are being conducted by the Bihar Nurses' Registration Council, Patna. In the nursing cadre (A. N. M. and Staff Nurse Grade'A'Post) the appointments are being made batchwise on the basis of the marks obtained in the examination. Earlier the appointments of A. N. M. was stayed by the State Government vide Health Department Teleprinter Message No. 144 dated 10-5-1990 which, however, was withdrawn vide Health Department's letter No. 19 dated 11-1-1991. In view of this withdrawal, Respondent No. 3, the Deputy Secretary, Health, Government of Bihar, Patna vide Memo No. 166 (6) dated 7-2-1991 (as contained in Annexure-7) directed all the Civil Surgeons of the State of Bihar to appoint the trained A. N M. on the posts of A. N. M. since the Central Government was also pressing. About 2,500 posts of A. N. M. are vacant in the State. In view of the directions contained in Annexure-4, the Civil Surgeons are appointing trained A. N. Ms. The candidates who have passed in April, 1990 batch having lesser marks than the petitioner have been appointed. The process for appointment of A. N. Ms. is that the Civil Surgeon-cum-Chief Medical Officer of the district prepares a panel of the trained A. N. Ms. of the candidates passing from the A. N. M. Training School situated in the district in order of merit and thereafter the Civil Surgeon of the district appoints the trained A. N. Ms. against the vacant posts and in case of more or less posts than the trained A. N. Ms., he informs the Director-in-Chief Health Services, Government of Bihar, Patna (Respondent No. 4) who in his turn directs other Civil Surgeons of the districts to appoint them. For appointment of G. N. M. (Staff Nurse Grade 'A') list of trained G. N. Ms. are sent by the Bihar Nurses' Registration Council, Patna to Respondent No. 4, who prepares a panel in accordance with the marks obtained in the G. N. M. final examination and the trained G. N. Ms. are appointed marks-wise and batchwise by Respondent No. 4. Vide Memo No. 19 dated 11-1-1991 Respondent No. 2, the Secretary, Health Government of Bihar, Patna (as contained in Annexure-8) constituted a Committee at the district level for appointment against the post of Class III and IV categories which include the posts of A. N. M. which is also known as Grade 'B' in the nursing cadre. Under Clause 6 of the Advertisement (as contained in Annexure-9) for admission in A. N. M. course, the State Government is duty bound to appoint the trained A. N. Ms. on the post of A. N. M. in any district and that the candidates selected for admission in A. N. M. course have to fill up bonds that after completing the training they have to mandatorily serve the State Government for atleast five years. After lifting the ban on appointment to the posts of Class III and Class IV categories, the Additional Director, Health Services, Government of Bihar, Patna (Respondent No. 5) directed the Civil Surgeon-cum-Chief Medical Officer, Darbhanga vide Memo No. 308 (6) dated 5-4-1991 (as contained in Annexure-10) to appoint one Smt. Anjani Kumari, Roll No. 667 of October, 1989 batch and similarly, Civil Surgeon-cum-Chief Medical Officer, Godda vide Memo No. 1151 dated 3-8-1991 (as contained in Annexure-10/1 appointed one Smt. Hiramani Kumari of April, 1990 batch, who got 685 and 701 marks respectively. The procedure for appointments on the post of A. N. Ms. are made by the State Government through Civil Surgeon-cum-Chief Medical Officer batch-wise and according to the marks obtained in the A. N. M. examination conducted by the Bihar Nurses Registration Council, Patna. The petitioner is a trainee of Raj A. N. M. Training School, Muzaffarpur. She appeared in the A. N. M. examination held in April, 1990 conducted by the Bihar Nurses' Registration Council, Swasthya Bhavan, Sultanganj, Patna. She topped amongst the first Divisioners in the said examination securing 741 out of 906 marks. The petitioner has also prayed for grant of similar relief in relation to other trainees of Raj A. N. M. Training School, Muzaffarpur. The petitioner has been denied appointment violating Articles 14 and 16 of the Constitution of India.

(3.) Counter-affidavit has been filed only by Respondent No. 5, in which it has been stated as follows : that the petitioner has no legal right to be appointed ; that appointments are made from the Governments Institutions and not from the private Institutions ; that there is no question of violation of Articles 14 and 16 of the Constitution ; that Kurji Holy Family Hospital is a Government approved Institution ; that the Government appoints only those A.N.Ms, who have passed from Government Institutions sanctioned by the Government ; that Raj A. N. M. Training School, Muzaffarpur is not recognised by the Government ; that the Government has only recommended the Institution for recognition and regularisation vide Memo No. 397(6) dated 29-6-1989 (Annexure-2) and the trainees were allowed to appear in the examination ; that the A .N. Ms. getting training were not ordered for their appointment by the Government; that the trainees are not entitled for appointments ; that the trained A. N. Ms. of Raj A. N. M. Training School, Muzaffarpur has no right to claim for appointment; and that writ application is fit to be dismissed. The Submissions :