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Himachal Pradesh High Court · body

2016 DIGILAW 2476 (HP)

Jyoti Education Welfare Society v. State of H. P.

2016-11-24

MANSOOR AHMAD MIR, SANDEEP SHARMA

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ORDER : Sandeep Sharma, J. Since common questions of law as well as facts are involved in the present cases, this Court vide order dated 6.10.2016 clubbed aforesaid petitions and since then has been hearing them together with the consent of the parties. 2. By way of present Civil Writ Petitions filed under Article 226 of the Constitution of India, the petitioners have laid challenge to the decision of the respondent-State Annexures P-17 & P-11 respectively, whereby approval of Government has been conveyed for issuance of essentiality and feasibility certificate/NOC in favour of respondent No.2, Northern International Educational Society in CWP No.2392 of 2016 and respondent No.5, Kangra Valley Nursing College Educational Society in CWP No.1740 of 2016(in short ‘Respondents societies’) for starting GNM/B.Sc. Nursing courses attached to Dr. RPGMC, Tanda, District Kangra, H.P, whereby respondents-societies have been allotted 60 seats each in both courses. 3. In nutshell, case of the petitioners is that since the respondents-societies had not applied in terms of notice inviting expression of interest for opening of B.Sc. (Nursing) College and General Nursing & Midwifery (GNM) training schools in Himachal Pradesh in terms of the advertisement (Annexure P-3), dated 24.9.2014 published in daily news paper, there was no occasion for the respondent-State to consider the case of the ‘Respondents-societies’ for grant of courses and allotment of seats attached to Dr. RPGMC, Tanda, District Kangra, H.P. The Department of Medical Education & Research, Government of Himachal Pradesh vide Annexure P-3, invited expression of interest for opening of B.Sc (Nursing) College and General Nursing and Midwifery (GNM) training schools in Himachal Pradesh at two locations i.e. Rohru and Tanda. As per advertisement, Government of Himachal Pradesh expressed its intention to establish B.Sc Nursing College and General Midwifery Schools under Public Private Partnership in terms of notifications No. HFW-B(F)4-5/2013,dated 04-06-2013 and No. HFW-B(F)4- 3/2014, dated 30.6.2013 and No. HFW-B(F)4-9/2014, dated 24.07.2014 at Rohru and Tanda. The aforesaid notifications issued by the respondent-State provided 40 seats in General Nursing and Midwifery at Rohru attached with Civil Hospital, Rohru and Jubbal, whereas 60 seats each in GNM and B.Sc Nursing were offered for location Tanda attached to Dr. RPGMC, Tanda. The aforesaid notifications issued by the respondent-State provided 40 seats in General Nursing and Midwifery at Rohru attached with Civil Hospital, Rohru and Jubbal, whereas 60 seats each in GNM and B.Sc Nursing were offered for location Tanda attached to Dr. RPGMC, Tanda. Note appended with the aforesaid advertisement clearly provided that the party/Trust/ Society which have already applied for opening of GNM Schools/B.Sc Nursing College under preferred location Rohru & Tanda are also required to submit fresh proposals alongwith supporting documents but no initial inspection fee would be charged from those institutions which had paid inspection fee earlier. 4. In the instant case pursuant to aforesaid advertisement, petitioners as well as respondents societies made applications for grant of courses at Rohru and Tanda. 5. Documents annexed with the petitions suggest that respondent-authorities after evaluating the proposals submitted by the petitioners namely Jyoti Education Welfare Society and National Career Public Education Committee as well as respondents-Societies, submitted its evaluation report Annexure P-6. The final evaluation report submitted by the committee suggests that respondent Kangra Valley Nursing College Educational Society was awarded 36 points, whereas present petitioner Jyoti Institute of Nursing was awarded 32 points. But before some action could be taken on the aforesaid report having been submitted by the Directorate Level Evaluation Committee, Additional Chief Secretary(Heath) to the Government of Himachal Pradesh on the representation filed by the Chairman, Northern International Education & Research Centre, Ghurkhari, District Kangra, H.P., directed the Director Medical Education & Research, Himachal Pradesh to examine the case of Northern International Education & Research Centre for starting up GNM & B.Sc courses with annual intake of 60 seats each for preferred location at Tanda. 6. Perusal of Annexure P-9, dated 20.12.2014 suggests that the Director Medical Education & Research with reference to communication sent by the Additional Chief Secretary (Health) to the Government of Himachal Pradesh informed that the advertisement had been published in news paper dated 24.9.2014 inviting expression of interest from the interested parties for preferred location Rohru and Tanda on or before 15.10.2014. The Director, specifically informed the Additional Chief Secretary (Health) that as per the note appended in aforesaid notice inviting expression, “the party/Trust/ Society, which had already applied for opening of GNM Schools/ B.Sc Nursing College under preferred location Rohru & Tanda were also called/advised to submit fresh proposal alongwith supporting documents. The Director, specifically informed the Additional Chief Secretary (Health) that as per the note appended in aforesaid notice inviting expression, “the party/Trust/ Society, which had already applied for opening of GNM Schools/ B.Sc Nursing College under preferred location Rohru & Tanda were also called/advised to submit fresh proposal alongwith supporting documents. The Director, Medical Education & Research further informed that all the 11 applicants who had earlier applied for GNM & B.Sc Nursing courses under preferred location at Tanda in the year, 2008 could also respond to the EOI called by the department in the month of September, 2014 alongwith other applicants without any initial inspection fee, but none of the applicants except Kangra Valley Nursing College Educational Society submitted their proposals/representations afresh in the light of advertisement dated 24.9.2014 and as such, department considered the proposals of four applicants for opening of Nursing Institution at Rohru and Tanda. The Director further informed the Additional Chief Secretary (Health) that evaluation report in respect of four applicants already stands submitted to the Government vide letter dated 18.12.2014 for taking further necessary action at Government level. But it appears that despite aforesaid communication having been sent by the Director Medical Education and Research, respondent–State directed the Director Medical Education & Research to carry out inspection of Northern International Education & Research Society Ghurkari alongwith other four applicants who had applied in terms of advertisement dated 24.9.2014. The communication (Annexure P-11), dated 19.5.2015 further suggests that the Directorate Level Evaluation Committee after carrying out necessary inspection submitted its report alongwith photocopy of inspection reports conducted by SDM level committee in respect of Northern International Education Society Ghurkhari, District Kangra, H.P. However, evaluation Committee, on the basis of inspection carried out by it, awarded 35 points in favour of Northern International Education & Research Centre Society. Aforesaid evaluation report submitted by the Director Medical Education, who is also Chairman of the evaluation committee did not recommend the case of aforesaid society. The Chairman Evaluation committee categorically stated that the applicant does not fulfill the parameters of the INC, hence, his application cannot be considered. 7. Further, perusal of communication (Annexure P-13), dated 30.11.2015, suggests that respondent-State again directed the Director Medical Education and Research Himachal Pradesh to carryout fresh inspection of Northern international Education & Research Centre Society on the basis of the criteria already in practice and send report to the department. 7. Further, perusal of communication (Annexure P-13), dated 30.11.2015, suggests that respondent-State again directed the Director Medical Education and Research Himachal Pradesh to carryout fresh inspection of Northern international Education & Research Centre Society on the basis of the criteria already in practice and send report to the department. Pursuant to the aforesaid communication, the Director Medical Education submitted Directorate level evaluation committee report in respect of Northern International Education & Research Centre Society, whereby society was declared qualified. 8. Accordingly, in view of aforesaid report submitted by the Directorate level evaluation committee, proposal regarding issuance of NOC/Essentiality certificate to start GNM and B.Sc Nursing courses under preferred location i.e. Dr. RPGMC, Tanda in favour of Northern International Education Society was placed before the cabinet in its meeting held on 14.1.2016. 9. It is undisputed that respondents-societies had not applied in terms of advertisement dated 24.9.2014 at first instance and as such, their cases were not considered by the SDM level evaluation committee while submitting evaluation report dated 18.12.2014, wherein respondent Kangra Valley Nursing College Educational Society was awarded 36 points and the petitioner Jyoti Institute was awarded 32 points. It emerges from the record that respondent Northern International Education & Research Centre Society filed representation (Annexure P-8) before Additional Chief Secretary (Health) to the Government of Himachal Pradesh in terms of the order dated 4.12.2014 passed by this Court in CWP No.209/2013, praying therein that it may be granted NOC for running courses in GNM and B.Sc Nursing with Dr. RPGMC Tanda. 10. Perusal of representation Annexure P-8, suggests that pursuant to different notifications issued by the respondent-State inviting applications for setting up GNM & B.Sc Nursing at Tanda, Northern International Education and Research Centre had applied and inspection of the premises was done but no NOC was issued in favour of this institute regarding Tanda and as such, it filed CWP No.1438 of 2009. During the pendency of aforesaid petition, Court was informed that though location at Dharamshala is vacant but same has been rejected by Indian Nursing Council. In the meanwhile, respondent-State issued notification dated 23.7.2011 providing therein that now there is no bar that only one Nursing Institution can be attached with one hospital, however, it was informed that Dr. RPGMC Tanda would not be provided as preferred location since centre of excellence is proposed to be opened there. In the meanwhile, respondent-State issued notification dated 23.7.2011 providing therein that now there is no bar that only one Nursing Institution can be attached with one hospital, however, it was informed that Dr. RPGMC Tanda would not be provided as preferred location since centre of excellence is proposed to be opened there. But subsequently, as per notification dated 30.9.2013, Dr. RPGMC Tanda was again preferred as a location for opening Nursing Institutes(s) in private sector with 60 seats each in GNM and B.Sc. ( Nursing), accordingly, Northern International Education Society submitted its application on 3.7.2008, praying therein for starting B.Sc(Nursing) and GNM Courses at Ghurkhari attached with Dr. RPGMC at Tanda. But it appears that pursuant to aforesaid application having been preferred by Northern International Education Society, no decision could be taken by the authorities. 11. By way of aforesaid representation, respondent society prayed for granting essentiality certificate in view of the fact that its premises were earlier inspected on two occasions in the years 2005 and 2008 by the authorities pursuant to earlier application submitted by it. 12. Perusal of Annexure P-9 suggests that respondent-State taking cognizance on the aforesaid representation of the respondent society, directed the Director, Medical Education & Research to carry out inspection of Northern International Education & Research Centre alongwith other applicants, who had applied in terms of advertisement dated 24.9.2014. Thereafter, the Director, Medical Education & Research, after evaluating the premises, submitted its report declaring therein respondent to be qualified. 13. In the instant case, this Court after carefully perusing the material placed on record is not satisfied and convinced with the method adopted by the respondent authorities while analyzing/scrutinizing the applications submitted by the petitioners as well as respondents societies pursuant to the advertisement dated 24.9.2014 and we have no hesitation to conclude that no uniform yardstick was applied by the evaluation committee while carrying out the inspection of applicant institutions and as such, is of the view that it would be in the interest of justice if authorities are directed to conduct fresh inspection of all the institutions/societies, had applied in terms of the advertisement dated 24.9.2014 as well as Northern International Education and Research Centre, whose case was considered by the Government while accepting its representation dated 6.1.2015 so that allegations of bias as well as arbitrary exercise of power as alleged by the parties, is put to rest. 14. 14. Needless to say, authorities would carry out fresh inspection strictly in terms of the guidelines framed in this regard by the respondent-State as well as INC after affording adequate opportunity of being heard to all the applicants including petitioners as well as respondents-societies. At this stage, it may be observed that this Court deemed to have passed this order while keeping in view the claims and counter claims of the parties viz-a-viz genuineness and correctness of the evaluation report submitted by the evaluation committee formulated by State of Himachal Pradesh while recommending issuance of NOC as well as feasibility certificate for setting up GNM & B.Sc nursing courses. 15. The observations made hereinabove shall not cause prejudice to the parties, in any way. 16. Respondent-State is directed to do the needful in view of the aforesaid observations within a period of two weeks from today and submit its report in sealed cover to this Court on or before the next date of hearing.