Research › Search › Judgment

Orissa High Court · body

2012 DIGILAW 418 (ORI)

Bhagabat Sahu v. State of Orissa

2012-09-21

S.PANDA

body2012
JUDGMENT S. PANDA, J. : The petitioner, who is the Secretary of Maa Biraja School of Nursing (ANM), Jajpur, has filed this writ petition challenging the action of the opposite parties in granting “No Objection Certificate” (in short, “NOC”) for opening of ANM Course with stipulation Nos.1 and 2 which are in violation of Indian Nursing Council Act, 1947 (hereinafter referred to as “the 1947 Act”). 2.The brief facts of the case are that on the demand of local public of Jajpur town, Maa Biraja School of Nursing was established to provide health service to the people. Accordingly, the petitioner’s institution filed an application on 5th September, 2007 to obtain NOC for the said purpose. The authorities granted NOC in favour of other institutions, however, did not grant NOC in favour of the petitioner’s institution for which W.P.(C) No.1213 of 2011 was filed which was disposed of on 11.5.2011 with a direction to the opposite parties to look into the grievance of the petitioner with regard to grant of NOC for opening of the institution and take final decision within a period of one month from the date of production of certified copy of the order before the Commissioner-cum-Secretary, Health and Family Welfare Department, Government of Odisha. This Court further directed that if the petitioner’s institution fulfils all the conditions like other institutions who have received NOC, the application of the petitioner’s institution shall also be considered and NOC shall be granted in its favour. Opposite parties rejected the application of the petitioner’s institution on 12.9.2011 vide Annexure 2. Challenging the said order, the petitioner filed W.P.(C) No.26651 of 2011. This Court quashed the order dated 12.9.2011 passed by the opposite party No.1 by order dated 30.4.2011 directing opposite party No.1 to consider the application of the petitioner’s institution as per the direction given in W.P.(C) No.12369 of 2011 and take a decision within a period of two months from the date of receipt of the order. Thereafter, the NOC was granted on 1.2.2012 in favour of the petitioner’s institution with the following stipulations which are extracted below : “1.The Institution will not be allowed to entertain admission without prior approval of Indian Nursing Council, State Nursing Council and Odisha Nursing Mid-wife Examination Board. 2.Admission should be limited to the intake capacity approved by the Indian Nursing Council. 2.Admission should be limited to the intake capacity approved by the Indian Nursing Council. 3.The State Government will not be responsible for providing employment to the pass outs. 4.NOC shall be withdrawn in violation of the terms and conditions. 5.The admission shall be made on the basis of merit/norms prescribed by the Indian Nursing Council. 6.The NOC is valid for one academic session only. 7.The onus of arranging Hospital/PHC/CHC etc. for practical training of the students lies with the institutions and that Govt. will not be responsible on this issue.” 3.Learned Counsel for the petitioner submitted that stipulation Nos.1 and are illegal, arbitrary and in violation of the statutory provision made under the Act, 1947. The said Act does not prescribe any condition or provision for recognition of the institution by the Indian Nursing Council or obtaining permission to establish any institution or any restriction regarding seat matrix for taking admission into the institution for ANM Course. Sections 10 and 14 prescribe for recognition of qualification and grant of certificate. If any institution does not satisfy the requirement of the Act, the Council may withdraw the recognition. He submitted that the Orissa Nursing and Midwifery Examination Board was established and framed its own Regulation. The said Board issues certificates to the ANM trainees who are successful in the examination conducted by the Board and those certificates are recognised under the Act for registration with the State Council. Regulation 71 stipulates the number of recognised institutions for training in ANM. Regulation 72 stipulates that the list may be added or modified from time to time on the recommendation of the Orissa Nurses and Midwives Examination Board. Regulation 31 stipulates regarding functions of the inspection sub-committee referred to in Rule 4(ii). 4.For better appreciation, Regulation 31 is quoted below : “31. The functions of the Inspection sub-committee referred to in Rule 4(ii) shall include; (a)Inspection of institutions and hospitals approved for conducting course of training for certificate for Nurse, Midwives and Auxiliary Nurse-Midwives. (b)Inspection of institutions and hospitals seeking approval as training institutions for certificate for Nurses, Midwives and Auxiliary Nurse-Midwives. (c)Report to the Board as to the extent to which the conditions laid down in Appendix-G have been fulfilled in respect of the above institution and hospitals. (b)Inspection of institutions and hospitals seeking approval as training institutions for certificate for Nurses, Midwives and Auxiliary Nurse-Midwives. (c)Report to the Board as to the extent to which the conditions laid down in Appendix-G have been fulfilled in respect of the above institution and hospitals. (d)Recommendations, if any, for their improvement.” 5.He submitted that on a conjoint reading of the above, it would be cleared that the Inspection Sub-Committee after inspection recommends the Board for grant of approval to establish the institution and affiliation. After receiving such approval, the institution is to be added to the list as stipulated in Regulation 72. He further submitted that there are three entry level courses in Nursing Education, i.e. (a) ANM Training for 18 months leading to a certificate course; (b) GNM Training for 3½ years leading to a diploma course; (c) B.Sc. Nursing for 4 years leading to degree in Nursing Course. For General Nursing degree, Science is the qualification for admission. For GNM course, +2 Science is necessary qualification for admission. For ANM course, a certificate for which the required qualification is 10th pass. After the Act, 1947 came into force, the aim and object to constitute an Indian Nursing Council is to establish a uniform standard of training for nurses, midwives and health visitors and conduct examination and issue certificates. The Orissa Nursing Midwifes Board is accepted by INC as authority recognized by the State Government to conduct examination and issue certificate for ANM Course. After obtaining the said certificate, the person shall serve as a Nurse, Midwife and Auxiliary Nurse Midwifery. He submitted that in September, 2001, the INC issued guidelines regarding opening of a School/College of Nursing for conducting ANM/FHW training. The said guideline reads as follows : “1.Any organisation under the Central Government, State Government, Local Body or a Private or Public Trust, Mission, Voluntary registered under Society Registration Act or a Company registered under Company’s Act wishes to open to School/College of Nursing, should obtain the No Objection/Essentiality Certificate from the State Government. 2.The Indian Nursing Council on receipt of the proposal, from the Institution to start nursing program (School and College), will undertake the first inspection to assess suitability with regard to physical infrastructure, clinical facility and teaching faculty in order to give permission to start the programme. 2.The Indian Nursing Council on receipt of the proposal, from the Institution to start nursing program (School and College), will undertake the first inspection to assess suitability with regard to physical infrastructure, clinical facility and teaching faculty in order to give permission to start the programme. 3.After the receipt of the permission to start the nursing programme from Indian Nursing Council, the institution shall obtain the approval from the State Nursing Council and Examination Board. 4.Institution will admit the students only after taking approval of State Nursing Council and Examination Board/University. 5.The Indian Nursing Council will conduct inspection every year till the first batch completes the programme. Permission will be given year by year till the first batch completes.” 6.He further submitted that on the basis of the said guidelines, the State Government has issued NOC though the said guidelines have no statutory effect and there is no provision to take approval of State Nursing Council and Orissa Nursing Midwife Examination Board by an institution to admit the students Learned counsel for the petitioner further submitted that Section 16(3) of the Act stipulates that the Council shall frame regulations and that is inserted by way of amendment Act 4 of 1986 which came into effect from 15.5.1986. Since the above guideline is not a regulation and it is only a guideline issued by the Council, it has no binding effect. Therefore, the stipulations given in the NOC issued by opposite party No.1 is liable to be set aside. 7.Though INC was impleaded as opposite party No.2 and received the copy of the writ petition since April, 2012 it has not filed any counter affidavit. 8.Opposite parties 1, 3 and 4 have filed the counter affidavit wherein they have stated at paragraph-10 that in order to establish uniform standards of training for nurses, midwives and health visitors, the guidelines for establishment of new Nursing Schools/Colleges in India was approved by Indian Nursing Council. Thereafter the Orissa Nurses and Midwives Examination Board was established for the purpose of enabling persons to receive, after appropriate Teaching and Examination, certificates testifying their adequate training and proficiency in Nursing and midwifery. For the said purpose, an institution, before admitting students and stating nursing programme have to get the permission from the INC as per the INC Act and so also subsequently the approval and recognition of the State Nursing Council and Board. For the said purpose, an institution, before admitting students and stating nursing programme have to get the permission from the INC as per the INC Act and so also subsequently the approval and recognition of the State Nursing Council and Board. Then only, after due completion of training, the State Nurses and Midwives Examination Board can hold the examination of the concerned sessions and grant certificate to the pass outs of the institution. 9.Though the said guideline was applicable since 2001, the same was not strictly followed by the State Government till 2005. On 31st March, 2004, INC issued a letter for implementation of the syllabus and regulation for the Diploma in GNM Course (Revised-2001) without fail, since the INC has given enough time for implementation. In the year 2006, another letter was issued by the INC to ensure uniform standard of Nursing Education in the country by implementing the up-to-date regulation/syllabi. The State Government is strictly following/adopting the guidelines and regulations of the INC from the year 2006 while granting NOC/Essential Certificate for establishment of New Nursing Institutions. Keeping in view the INC Act and Regulations, a specific guideline was prescribed by the State Government on 26.7.2008 which would apply mutatis mutandis to all the institutions running/intending to run different nursing course in the State to bring uniformity in granting NOC. 10.He further fairly submitted that the State authorities/Board had no occasion to grant approval as there was no statutory provision to grant approval to the institutions who are imparting training of ANM Course. 11.This Court in W.P.(C) No.16237 of 2011 and in a series of writ petitions filed by the institutions disposed of on 27.7.2011 held that 2000 guidelines issued by the INC has no statutory force. Therefore, the same should not be a condition precedent to admit the students into ANM training institutions established after obtaining NOC from the State Government. 11.This Court in W.P.(C) No.16237 of 2011 and in a series of writ petitions filed by the institutions disposed of on 27.7.2011 held that 2000 guidelines issued by the INC has no statutory force. Therefore, the same should not be a condition precedent to admit the students into ANM training institutions established after obtaining NOC from the State Government. 12.It is submitted by the learned counsel for the opposite parties that in Writ Appeal No.41 of 2010 which was disposed of on 13.9.2011 by a Division Bench of this Court wherein it was held that any institution which is required to be established either in a public or private sector or by a society as the Society Registration Act must necessarily obtained recognition from the State Government as required under the provisions of the INC Act to facilitate the Board for the purpose of conducting examination as per the provided syllabus particularly the course of training either for nursing or midwifery. The statutory provisions as discussed above mandate the institution which is required to be established to seek recognition and get recognition. In view of the above, NOC granted to the petitioner’s institution as per the stipulations required under the law need not be interfered with. 13.Considering the above rival submissions of the parties and in view of the finding of a Division Bench of this Court in Writ Appeal No.41 of 2010 which was disposed of on 13.9.2011, this Court is of the view that the stipulations given in the NOC by the State Government is not in accordance with the statutory provisions of the Act, 1947. Since there is no provision to grant approval to the institutions by the State authorities or the examination board, stipulation Nos. 1 and 2 made in the impugned letter dated 1.2.2012 issued by opposite party No.1 are hereby quashed. Accordingly, the writ petition is allowed. Petition allowed.