Krishna Yadav And Others v. Suman And Others
Krishan Yadav and others Appellants
Versus
Suman and others ... Respondents !
State of Haryana and others Appellants
Versus
Suman and others
...Respondents
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Present:
Mr.R.K. Malik, Sr. Advocate with Mr.Vijay Dahiya, Advocate for the appellant (in LPA No.282 of 2014) Mr.Sandeep Moudgil, Addl. A.G., Haryana for the appellant (in LPA No.1009 of 2014 for the respondent State (in LPA No.282 of 2014).
Mr.Harish Nain, Advocate for respondent No.1. . . 0 This order shall dispose of two intra Court appeals under Clause X of the Letters Patent as the both are directed against the common judgment dated 04.02.2014 passed by the learned Single Judge, whereby, the writ petition filed by respondent No.1 challenging the selection and appointment of private respondents No.5 to 17 has been allowed. For the purpose of decision, the facts are being taken from LPA No.282 of 2014.
An advertisement dated 24.8.2012 was issued by the Director, Health Education and Research, Haryana inviting applications for various posts including 27 posts of Nursing Sisters to be posted at Shaheed Hasan Khan Mewati Government Medical College Nalhad (Mewat), Haryana. The following qualifications were stipulated for the post of Nursing Sisters:
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# - The last date of submission of the applications was 14.09.2012. Interviews were held on 4th and 5th December, 2012. The result was declared in the month of January, 2013 and appointment letters were issued on 1st February, 2013. Respondent No.1, who possessed all the requisite qualifications including of being registered with the Haryana Nursing Registration Council (HNRC) was not selected. On the other hand, the appellants were selected though they were not eligible, inasmuch as, they were not registered with the HNRC. Aggrieved, respondent No.1 filed the writ petition challenging the selection of the appellants.
Upon issue of notice of motion, the selection and appointment of the appellants was justified by the respondent
* State by stating that vide letter dated 08.08.2012, the Government of Haryana had given relaxation in the service rules with regard to the condition of registration with HNRC for appointment of Staff Nurses and it was stipulated that the candidate could be registered with Haryana Nursing Registration Council within six months after the date of joining the service. Subsequently, a clarification was issued on 12.12.2012 that in the Government letter dated 08.08.2012, the word 'Staff Nurse' be replaced with 'Nursing Staff'. Vide this letter, it was clarified that the relaxation is meant for all the Nursing Staff i.e.
Nursing Superintendent, Deputy Nursing Superintendent, Assistant Nursing Superintendent, Nursing Sister and Staff Nurse with the condition that they get themselves registered with HNRC within six months after the date of joining the service. It was argued that this clarification would relate back to the date of the initial decision taken by the Government i.e. 08.08.2012. Therefore, this decision would apply to the appointment and selection of the appellants, as the relaxation ought to be taken to have been made before the date of advertisement.
Learned Single Judge, however, disagreed with the contention of the respondent State. It was held that the requirement of registration with HNRC is a mandatory condition provided in the Statutory Rules, which are as under:
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It was further held that the decision for relaxation dated 08.08.2012 was qua a particular post i.e. Staff Nurse and in pursuance thereto, the advertisement was issued on 24.08.2012 (Annexure P 1). Accordingly, in that advertisement, the requirement for registration with the HNRC was not provided for the post of Staff Nurses but the said condition finds mention in the qualifications prescribed for the post of Nursing Sisters. From this, it is clear that the Government intended the decision only to cover the posts of Staff Nurse and not the Nursing Staff. It was held that the decision to replace the words 'Staff Nurses' with 'Nursing Staff' had been taken on 12.12.2012, which was even after the date of interviews which were held on 4th and 5th of December, 2012. The decision, accordingly, could have only
, prospective application and could not be made applicable to the present selection. It was held that merely because the term used in the order dated 12.12.2012 is 'replacement of words' that would not mean that a decision had been taken by the Government qua the Nursing Staff also on 08.08.2012. The settled legal proposition that no change could be made after the issue of advertisement and that the rules of the game could not be changed mid way, was also relied on to reject the contention of the State Government. Accordingly, the selection of the appellants who did not fulfil the requirement of registration with HNRC and possessed the qualification of A Grade Nursing with Mid Wifery Training was set aside. The selection and appointment of respondents No.5 and 7 who possessed the qualification of B.Sc.
Nursing (Honour/ Post Basic) and qua whom registration with HNRC was not a prescribed condition in the advertisement was not disturbed. Similarly, the selection of respondents Nos.15 and 17, who had been registered with HNRC prior to the date of advertisement was also upheld. The decision has been assailed both by the selected candidates and the State of Haryana by filing two separate appeals.
Ld. Counsel for the appellant State has argued that the decision to relax the Service Rules regarding registration with HNRC for appointment of Nursing Staff was taken before the interviews were held. He states that there was no reason or
1 logic to limit the change only to Staff Nurses and not make it applicable to the `Nursing Staff' as a whole. He argued that the use of the term `Staff Nurse' in the letter dated 8.8.2012 was a mistake, which was corrected by issuing the subsequent letter dated 12.12.2012. The decision taken actually to relax the condition regarding registration with HNRC in respect of the entire Nursing Staff was sought to be explicitly emphasized by stating in the order dated 12.12.2012 that the word "Staff Nurses" in the Government Memo dated 8.8.2012 be replaced with "Nursing Staff". To leave no room for doubt, the letter dated 12.12.2012 went on to clarify that this relaxation is meant for all the Nursing staff i.e. Nursing Superintendent, Deputy Nursing Superintendent, and Assistant Nursing Superintendent & Nursing Sister and Staff Nurses.
On the other hand, the Ld. Counsel for respondent No.1 supported the decision of the Ld. Single Judge and urged that there is no ground to interfere in the said judgment. It was stressed that as per the settled law no change in the selection criteria can be made once the selection process has commenced.
Having heard Ld. Counsel for the parties, we are of the view that the appeals deserve to be allowed. We agree with the view of the Ld. State Counsel and the Ld. Counsel for the appellants, that the use of the words `Staff Nurse' in the letter dated 8.8.2012 was a mistake, which
+ was corrected by issuing the subsequent letter dated 12.12.2012. The recital in the letter dated 12.12.2012, that in the Government Memo dated 8.8.2012 the word "Staff Nurses" may be replaced with "Nursing Staff" itself indicates that the intention was that the change was to relate back to the date of issue of the letter dated 8.8.2012. To clear all ambiguity on the issue, it was also clarified in the letter dated 12.12.2012 that the relaxation was meant for all the Nursing Staff i.e., Nursing Superintendent, Deputy Nursing Superintendent, and Assistant Nursing Superintendent & Nursing Sister and Staff Nurses with the condition of registration with HNRC within six months of joining the service.
It is a well settled that an order passed in clarification of an earlier order must be deemed to relate back to the earlier order. This is the essence of an order of clarification. It has been so held by the Hon'ble Supreme Court in !" # $$#%% #) .
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- Moreover, limiting the relaxation only to the `Staff Nurses' and not to the other `Nursing Staff' would be iniquitous, as there could be no reasonable basis for insisting on prior registration with HNRC in respect of the Nursing Staff other than the Staff Nurses. We are of the view that the relaxation was rightly given and was meant for the entire Nursing Staff. The inadvertent error that had crept in while issuing the letter dated 8.8.2012 was corrected through the letter dated 12.12.2012. In this view of the matter, the argument that the selection criteria has been changed after the selection process had commenced is not attracted, in the facts of this case.
Accordingly, these appeals are accepted. The judgment and order of the Ld. Single Judge to the extent assailed is set aside. The selection and appointment of the appellants as Nursing Sisters is upheld.
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July 31, 2015 Atul