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2009 DIGILAW 196 (ORI)

KALINGA DEVELOPMENT STUDIES v. STATE OF ORISSA

2009-03-05

M.M.DAS

body2009
JUDGMENT : M.M. Das, J. - Heard Mr. Pandit, learned Counsel for the Petitioner and Mr. Dash, learned Counsel for the State. 2. The Petitioner claims to be a registered Society. The said Society intending to establish a Nurshing Institute in the name and style as "Bharati Devi Institute of Medical Science" to impart the course in General Nurshing and Mid Wifery, for the year 2008-2009, was suitably recommended by the Director of Medical Education and Training, Bhubaneswar and applied for essential certificate (No Objection Certificate to be submitted before the opp. party No. 3-Indian Nurshing Council for according necessary permission to impart the courses. The Petitioner further claims that the application as per the prescribed guidelines along with requisite documents and a project report were submitted before the opp. party No. 2 on 13.2.2008 under Annexure-1 series. The said application was duly processed and after conducting due enquiry, the opp. party No. 2 by its letter dated 11.3.2008 under Annexure-2 wrote to the opp. party No. 1 requesting the Government to consider issuance of essential certificate in favour of the Petitioner. In the meantime, the Indian Nurshing Council-opp. party No. 3 issued a notification under Annexure-3 prescribing the calendars of events for considering the proposal for opening of Nurshing Institutions, wherein, the period for submission of the application with requisite documents was fixed from 1st October, 2008 to 31st January, 2009. As the Government, despite the recommendation made by the Director-opp. party No. 2, withheld the essential certificate, the Petitioner preferred W.P.(C) No. 19759 of 2008 before this Court. This Court by order dated 15.1.2009 disposed of the said writ petition directing the Commissioner-cum-Secretary, Health and Family Welfare Department to look into the grievance of the Petitioner with regard to grant of NOC (Essentiality Certificate) for opening of GNM Training School at Bhubaneswar within a period of one month from the date of production of the certified copy of the said order along with a copy of the writ petition with all its annexures before the said Commissioner-cum-Secretary. It was further directed that if, in fact, the Petitioner satisfies all the conditions and the cases of other institutions, who applied after the Petitioner's institution, have been allowed, the required NOC shall be granted to the Petitioner. 3. It was further directed that if, in fact, the Petitioner satisfies all the conditions and the cases of other institutions, who applied after the Petitioner's institution, have been allowed, the required NOC shall be granted to the Petitioner. 3. The Petitioner submits that the certified copy of the said order along with a copy of the writ petition with all its annexures was produced before the Commissioner-cum-Secretary on 24.1.2009 and after receiving the same the Commissioner-cum-Secretary opp. party No. 1 rejected the prayer of the Petitioner under Annexure-4 to the writ petition. Being aggrieved, the Petitioner has preferred the present writ petition challenging the said order of rejection, on the ground of non-application of mind and unreasonableness. 4. Mr. Pandit, learned Counsel for the Petitioner submits that a bare reading of Annexure-4, the order of rejection would clearly manifest that the authority has not at all applied its mind before taking the decision. According to him, as this Court directed in the previous writ petition that if the cases of other institutions, who applied after the Petitioner's institution, have been allowed, the essential certificate shall be granted to the Petitioner, the Commissioner-cum-Secretary, without applying its mind to the other part of the order passed by this Court that if, in fact, the Petitioner satisfies all the conditions, such certificate shall be granted to it, solely on the ground that no other institutions having made applications for grant of essential certificate after the Petitioner's institution made the applications, rejected the claim of the Petitioner. 5. Learned Counsel for the State, on the contrary, submits that valid reason has been assigned in the order under Annexure-4 while rejecting the claim of the Petitioner and most vital reasons is that 18 applicants in toto applied from the district of Khurda including the Petitioner's institution for opening of GNM Training Schools. None of them have been considered for grant of essential certificate in their favour as eight institutions are already running in the district of Khurda. None of them have been considered for grant of essential certificate in their favour as eight institutions are already running in the district of Khurda. The order under Annexure-4, which has been impugned in this writ petition was passed pursuant to the order of this Court in W.P.(C) No. 19759 of 2008 and reads as follows: Government of Orissa Health and Family Welfare Department Kalinga Development Studies, Bhubaneswar have filed a writ petition before the Hon'ble High Court in W.P.(C) No. 19759/2008 through its Secretary, Sri Sarat Chandra Biswal with the prayer to direct the opposite parties to grant essentiality Certificate in favour of his institution for the sessions 2008-09. 2. The Hon'ble High Court while disposing of the writ petition in their order dt. 15.1.2009 directed the Commissioner-cum-Secretary, Health and Family Welfare Department to look into the Grievance of the Petitioner with regard to grant of Essentiality Certificate for opening of GNM Training School at Bhubaneswar and take a final decision thereon within a period of one month from the date of production of the certified copy of the order along with a copy of the Writ Petition with all its annexures by the Petitioner. In the said order, the Hon'ble Court further directed that if, in fact, the Petitioner satisfies all the conditions and the cases of other Institution, who applied after Petitioner's Institution, have been allowed the required Essentiality Certificate shall be granted to the Petitioners. 3. In pursuance of the above directives of the Hon'ble Court, the grievance of the Petitioner was carefully examined at different level of Opposite Party No. 1 basing on the averments raised in W.P. and its annexures. In course of such examinations following facts came into light. (i) 18 (eighteen) applicants in toto applied from the district of Khurda including the Petitioner institution for opening of GNM Training School. None of them have been considered for granting of Essentiality Certificate in their favour as eight Institutions are already running in that district. (ii) No Institution applied after the Petitioner considered for granting Essentiality Certificate for the purpose. In view of the above, the Grievance of the Petitioner is rejected being devoid of any merit. Sd/ - Anu Garg. Commissioner-cum-Secretary to Government. 6. (ii) No Institution applied after the Petitioner considered for granting Essentiality Certificate for the purpose. In view of the above, the Grievance of the Petitioner is rejected being devoid of any merit. Sd/ - Anu Garg. Commissioner-cum-Secretary to Government. 6. A bare reading of the said order shows that the Commissioner-cum-Secretary has rejected the case of the Petitioner on the ground that the cases of none of the 18 applicants in the district of Khurda have been considered for grant of essential certificate just because 8 institutions are already functioning in the said district. No where in the four comer of the said order, it appears that the said Commissioner-cum-Secretary has considered the recommendation made by the Director of Medical Education and Training-opp. party No. 2 to him as at Annexure-2. Nothing has been brought before this Court to show that if certain number of institutions imparting GNM Training exist in a particular district, no further essential certificate can be issued to any new intending institution to be established. It is, therefore, apparent that there has been non-application of mind on the part of the Commissioner-cum-Secretary in considering the case of the Petitioner pursuant to the order passed by this Court in the previous writ petition. Even in an administrative action giving reason is one of the fundamental of good administration and failure to give reasons amounts to denial of justice. As has been held by the Apex Court, reasons are live links between the mind of the decision taken to controversy in question and the decision or conclusion arrived at Reasons substitute subjectivity by objectivity and another rationale is that the affected party can know why the decision has gone against him. "Inscrutable face of the sphinx" is ordinarily incongruous with a judicial or quasi judicial performance (See State of Orissa Vs. Dhaniram Luhar, ). 7. As found by this Court, the order under Annexure-4, being not supported by any reasons and ex-facie showing non-application of mind, cannot be sustained and is accordingly quashed. The matter is remitted back to the Commissioner-cum-Secretary to Government of Orissa in its Health and Family Welfare Department, Bhubaneswar-opp. party No. 1 to consider the case of the Petitioner keeping in view the recommendation of the Director-opp. party No. 2 and all other documents produced by the Petitioner for grant of essential certificate. The matter is remitted back to the Commissioner-cum-Secretary to Government of Orissa in its Health and Family Welfare Department, Bhubaneswar-opp. party No. 1 to consider the case of the Petitioner keeping in view the recommendation of the Director-opp. party No. 2 and all other documents produced by the Petitioner for grant of essential certificate. If, in fact, there is no bar for grant of essential certificate to an institution even though other similar institutions exist in a particular district and the Petitioner satisfies all other conditions for grant of such essential certificate, the opp. party No. 1 is directed to grant such essential certificate to the Petitioner's institution. A final decision in this regard shall be taken by the opp. party No. 1 within a period of one month from the date of production of the certified copy of this order before him by the Petitioner by passing a speaking order. 8. With the above observations and directions, the writ petition is disposed of accordingly. 9. Urgent certified copy of this order be granted on proper application.