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2012 DIGILAW 420 (ORI)

Arun Kumar Panda v. State of Orissa

2012-09-21

SANJU PANDA

body2012
JUDGMENT S. PANDA, J. : The petitioner, who is the Secretary of School of Nursing and Health Science, Berhampur, has filed this writ petition seeking a direction to the opposite parties more particularly to the Indian Nursing Counsel, opposite party No.3, to allow its students to appear in the Board Examination ANM/H.F.(F) for the session 2009-2010. 2.The petitioner’s institution was established in the year 2006. No Objection Certificate (NOC) was granted to the petitioner’s institution for the academic session 2006-07 on 18.9.2006. After establishment of the institution, the trainees were admitted for ANM Course. The petitioner’s institution is imparting training as per the syllabus prescribed under the Indian Nursing Council Act, 1947 (hereinafter referred to as “the Act 1947). The trainees of the petitioner’s institution had undergone clinical/practical training at Government Hospital after obtaining due permission from the Chief District Medical Officer, Ganjam on 9.5.2007. The petitioner’s institution also filed an application before Indian Nursing Council (INC) for necessary inspection of the institution. However, INC sat over the matter without taking any step in that regard. After completion of the training courses when the Board did not conduct the examination, the petitioner approached this Court in WP(C) No.17341 of 2008 with a prayer to direct the opposite parties to allow the trainees to appear the examination. On the basis of the interim order, the trainees were permitted to appear the examination. The said writ petition was disposed of finally on 5.2.2010 directing the Board to publish the result of the trainees who appeared the examination for the sessions 2006-07 and 2007-08. The said order was challenged in Writ Appeal No.53 of 2010 by opposite party No.2. The writ appeal was disposed of on 22.3.2010 directing the petitioner’s institution to give an endorsement on the certificates that the institution has not been recognized by the INC. 3.Learned counsel for the petitioner submitted that the petitioner’s institution has obtained necessary NOC and also applied to INC for inspection of the institution which is pending. Therefore, the trainees of the petitioner’s institution should have been permitted to appear the examination for the academic session 2009-2010 as the institution is imparting training as per the prescribed syllabus of the INC and the trainees have already completed the practical training. Therefore, the trainees of the petitioner’s institution should have been permitted to appear the examination for the academic session 2009-2010 as the institution is imparting training as per the prescribed syllabus of the INC and the trainees have already completed the practical training. However, the opposite parties by misinterpreting the decision of the Division Bench of this Court in Writ Appeal No.41 of 2010 disposed of on 13.9.2011 wherein it was held that the institution which is required to be established either in a pubic or private sector or by a society as per the Society Registration Act must necessarily obtain recommendation from the State Government as required under the INC Act to facilitate the Board for the purpose of conducting examinations as per the syllabus particularly the course of training either for Nursing or Midwifery, did not allow the trainees of the petitioner’s institution for the academic session 2009-2010 to appear the Examination for which the petitioner’s institution filed W.P.(C) No.14418 of 2011 seeking a direction from the Court to conduct the examination and allow the trainees to appear the said examination. However, this Court disposed of the said writ petition with an observation that no institution, whether private or Government which does not possess the necessary recognition and/or approval from the Indian Nursing Council, shall be allowed to function and the opposite parties shall ensure the same and considering the view taken in W.A. No.41 of 2010, this Court held that the relief prayed for by the petitioner’s institution cannot be granted. 4.He further submitted that since there is no provision under the 1947 Act for grant of permission/approval to the institution who is imparting training by the INC or by opposite party No.2, the trainees should not have been debarred to appear the examination. The ANM Course is a certificate course only. In accordance with the Government National Policy on skill development, a research team assessed the deficient sectors in India and health sector is one of them. In Odisha, it was observed that there was no remarkable growth after 60 years of independence in the field of health service. Nursing personnel are required in every sphere and level of the health care delivery system for health promotion and disease prevention in the periphery. Sufficient numbers of nurses equipped with appropriate skills and knowledge are essential for achieving the said object. Nursing personnel are required in every sphere and level of the health care delivery system for health promotion and disease prevention in the periphery. Sufficient numbers of nurses equipped with appropriate skills and knowledge are essential for achieving the said object. Accordingly, a proposal was given to increase the number of Auxiliary Nursing Midwives. Since the Dictionary meaning of “Auxiliary” are “helping”, “helper” or “an assistant person”, the restriction put by the opposite parties are illegal, arbitrary, unreasonable and is liable to be interfered with and a mandamus is to be issued to conduct the examination. 5.A counter affidavit has been filed by the Indian Nursing Council, opposite party No.3, stating therein that the permission/approval from INC is required before an institution got the student admitted therein for any nursing course. The petitioner’s institution admitted the trainees before getting any approval/permission from the INC violating the Statute. The petitioner’s institution filed WP(C) 32960 of 2011 which was withdrawn by it with liberty to move the Secretary, Indian Nursing Council for redressal of its grievances with regard to the recognition/permission. Therefore, issue in the present writ petition is no more res integra; rather the same was settled. Accordingly, the writ petition is liable to be dismissed in view of the decision of this Court in Writ Appeal No. 53 of 2010 disposed of on 27.3.2012 keeping in view the judgment rendered in Writ Appeal No.41 of 2010. 6.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 No.1 made in the impugned letter dated 18.9.2006 issued by opposite party No.1 is hereby quashed and this Court directs the Indian Nursing Counsel, opposite party No.3, to allow its students to appear the Board Examination ANM/H.F.(F) for the session 2009-2010. Accordingly, the writ petition is allowed. Petition allowed.