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2016 DIGILAW 752 (ORI)

Deepika Rani Sethi v. Union of India

2016-09-07

D.P.CHOUDHURY, INDRAJIT MAHANTY

body2016
JUDGMENT : D.P. Choudhury, J. The captioned writ petition is filed for a direction to the opposite parties to issue pass certificate in favour of the petitioners for the GNM Examination 2016 and to protect their future careers. FACTS 2. The factual matrix leading to the case is that the petitioners took admission during the session 2014-2015 being persuaded by the advertisement in the official website of the Directorate of Medical Education & Training, Odisha, Bhubaneswar (hereinafter called ‘DMET’) in Sundargarh GNM Training School, Sankara, Sundargarh which is a Government approved private Nursing School to undergo Nursing training for two years by depositing proper course fees pursuant to which Admit cards have been issued by the authority specifying their respective roll numbers. At the end of 1st year, opposite party No.7, the concerned School published the time table for annual examination to be held at DIET, Sundargarh for the period from 2.2.2016 to 23.2.2016. The petitioners deposited examination fees before the School authority and the School authority issued Admit cards. It is stated that out of 69 students of GNM stream only 35 students were allowed to appear at proposed venue, i.e., DIET, Sundargarh but rest 34 students including the present petitioners were asked to undergo examination at the School and were provided with Xerox question papers. Due to nonappearance in the proper venue and non-distribution of the original question papers, doubt raised in the mind of the petitioners and they asked the Centre in-charge of the School about the factual aspect but the Centre in-charge could not answer properly. So, the petitioners lodged F.I.R. before the I.I.C. Town P.S., Sundargarh who registered the case and investigation continued. The Director of the School was arrested and it was revealed from the investigation that Indian Nursing Council has approved 35 seats for GNM students and 40 seats for ANM students but the School authority has admitted 69 students for GNM and 57 students for ANM in spite of the fact that their proposal for enhancement of seats was not considered by the Indian Nursing Council (hereinafter called ‘INC’) for which the School authorities who are accused persons in the criminal case filed by the petitioners conducted examination of the extra students of both the streams in an arbitrary manner as per their convenience. 3. 3. It is stated that the opposite party No.7 School is duly affiliated by the INC and approved by the Government of Orissa, Health & Family Welfare Department, Bhubaneswar and the DMET. It is alleged, inter alia, that when the seats were enhanced by the provisions of the Indian Nursing Council Act, 1947, the opposite party No.7 School authority gave admission to petitioners who took admission under the believe and hope of getting recognized qualifications to stand in future. Since the career of the petitioners at the verge of destruction with no fault of their and they appeared in the examination with true spirit and best effort, the apprehension of not getting pass certificate to prosecute their higher studies have been jeopardized and at the same time it has violated the principles of natural justice. It is, therefore, stated that when petitioners have no any fault direction may be issued to adjust them in any other Government recognized Schools of Nursing in the district of Sundargarh and to direct the concerned authority to issue proper certificate of passing the examination in the event of their pass in the examination to safeguard the career and future of the petitioners. 4. Opposite Party No.7 filed counter affidavit in pursuance of the order of this Court dated 28.7.2016 whereas other opposite parties did not file their counter. In the counter affidavit the Secretary of the opposite party No.7-School submitted that due to heavy demand and pressure of the prospective students and their guardians for admission in GNM course for the academic session 2014-2015, the Management conditionally conceded to give admission beyond approved seats for 34 students to the effect that the management would take care to move the concerned authorities for due approval of the increased seats. Accordingly, the Management gave admission and also at the same time moved the INC for grant of No Objection Certificate (NOC) after depositing the required fees. Opposite party No.7 institution also asked the petitioners to wait till NOC is received for increased strength. It is stated that examination of approved students was conducted as per the direction of the Board at the Centre in the office of DIET, Sankara, Sundargarh but no examination was conducted in the School premises and no Admit Card was issued to any student beyond the permitted students as per the list by the Board. It is stated that examination of approved students was conducted as per the direction of the Board at the Centre in the office of DIET, Sankara, Sundargarh but no examination was conducted in the School premises and no Admit Card was issued to any student beyond the permitted students as per the list by the Board. She also stated in the affidavit that the examination was conducted for the petitioners in the School is a false fact because nothing has been seized by the Police during investigation and no such answer papers of said petitioners have been submitted to the Board. It is further stated that some vested interested persons instigated the guardians of the students to lodge the false case by manipulating documents including the Admit Cards. It is stated in the counter affidavit to pass any appropriate order for the written and practical examination of the students. SUBMISSIONS 5. Mr. D.K. Mohapatra, learned counsel for the petitioners submitted that application form for admission into GNM course was published in the website, they downloaded the same and Rs.35,000/- has been also received from each of the students as admission fee and the Admit Cards have also been issued from the opposite party No.7 institution. He further submitted that tuition fees have also been received from each of the petitioners. He also submitted that Admit Cards for GNM Examination, 2016 have been also issued by the Secretary, Odisha Nurses and Midwives Examination Board, Bhubaneswar (hereinafter called ‘Board’) in the name of the petitioners who had taken training in the opposite party No.7-School. He further submitted that in spite of issuance of the Admit Cards, they are not allowed to appear in the Examination Centre, i.e., DIET, Sundargarh for which their suspicion raised. He submitted that the contention of the opposite party No.7 that no Admit Card was issued is a false fact but of course that is a subject of investigation as the petitioners believe the same to be the Admit Card. It is submitted by Mr. Mohapatra, learned counsel for the petitioners that opposite party No.7 has committed illegality by giving admission to these students when there is no increased seats approved by the concerned authority. According to him, once the admission has been given by accepting the fees, there is no reason to deny the petitioners to appear in the Examination by the authorities. Mohapatra, learned counsel for the petitioners that opposite party No.7 has committed illegality by giving admission to these students when there is no increased seats approved by the concerned authority. According to him, once the admission has been given by accepting the fees, there is no reason to deny the petitioners to appear in the Examination by the authorities. If at all the authorities have not approved the examination, opposite party No.7 ought not to have received the admission fee or the tuition fee. So, he submitted to consider the future of the petitioners and allow their papers to be evaluated and issue pass certificate by the Board in alternative adequate compensation to be paid to the petitioners for their pecuniary and other losses caused due to act of opposite party No.7. 6. It is submitted by Mr. D.K. Sahoo-I, learned Central Government Counsel for opposite party No.1, Mr. A. Mohanty, learned counsel for opposite party No.3 and Mr. R.C. Mohanty, learned counsel for opposite party No.6 that the opposite party No.7-School is an approved School duly recognized by the State Government, the Board and INC but the School has been only authorized to give training to 35 students. But the School authority on its own gave admission to 69 students in GNM stream. They also submitted that no Admit Card was issued by the Board for the increased strength as same has not been approved by the concerned authority. They, therefore, submitted that the future of the students has been jeopardized by the opposite party No.7 and these opposite parties are not responsible for any act, omission or commission by the opposite party No.7. They also submitted that the Director of the School and other persons involved for such admission have been already arrested in pursuance of the F.I.R. lodged by the petitioners. Since the future of the students are not protected by law, these opposite parties are no way responsible and accordingly appropriate order may be passed as the Hon’ble Court decides. 7. Mr. Since the future of the students are not protected by law, these opposite parties are no way responsible and accordingly appropriate order may be passed as the Hon’ble Court decides. 7. Mr. A. Mohanty, learned Senior Advocate appearing for the opposite party No.7, who is present in Court, submits that admission was given to the petitioners on the condition that they would be allowed to appear in the Examination if the appropriate NOC is received from the concerned authority and when the NOC is not received the condition for admission of the petitioners is actually the choice of the petitioners. He also submitted that the opposite party No.7 is ready to return the admission and tuition fees to the respective petitioners. He further submitted that in spite of the application by the opposite party No.7, the opposite party Nos.1 to 6 did not approve the increased seats for which the opposite party No.7 is duty bound to return the fees collected from the respective students. He also submitted that the petitioners even if aware that only 35 seats in GNM have been sanctioned by the Board and the INC but they took admission on their own in spite of the fact that there was no NOC for such increased strength. So, he submitted to pass appropriate order for the safeguard of the institution and the petitioners. 8. The points for consideration:- (i) Whether the petitioners are entitled to appear in the Examination and issue of pass certificate in the event of their passing Examination. (ii) Whether the petitioners are entitled to any other relief. DISCUSSIONS POINT NO.(i) : 9. It is not disputed that the petitioners being persuaded by the prospectus issued by the DMET applied for admission and the opposite party No.7 after considering their eligibility gave admission to the GNM course. It is also not in dispute that the opposite party No.7 has received the admission fee and tuition fee for their admission in two year degree GNM course for the year 2014-2015. It is not in dispute that the opposite party No.7 is a recognized institution having received the NOC from the State Government, INC and has got 35 seats approved for giving admission to the persons desirous for taking admission for two years GNM course. 10. It is not in dispute that the opposite party No.7 is a recognized institution having received the NOC from the State Government, INC and has got 35 seats approved for giving admission to the persons desirous for taking admission for two years GNM course. 10. It is submitted by the learned counsel for the opposite party No.7 that at the time of admission the petitioners have been informed that their admission is subject to approval of the increased strength by the authorities whereas the petitioners do not share the said fact. No document is filed by the opposite party No.7 to show that they have taken undertaking from these petitioners that their admission is subject to necessary approval of the Board and the INC. At the same time the documents under Annexure-2 series disclose that Rs.35,000/- admission fee and also tuition fee have been received by the opposite party No.7 from the petitioners and accordingly has also issued the Admit Cards. Petitioners have also filed Annexure-3 series to show that the opposite party No.7 has issued Admit Cards to the petitioners to appear in the Examination for the academic session 2014-2015 whereas the opposite party No.7 denies about issue of the Admit Cards. Of course on this issue investigation is kept pending. There is reason to believe the documents to be the Admit Cards because the stamp of the Odisha Nurses and Midwives Examination Board has been affixed on the Admit Cards and such documents also not denied to have been issued by the Odisha Nurses & Midwives Examination Board by the opposite party Nos.1 to 6. But the crux lies on the fact that the petitioners were not allowed to enter into the Examination Centre but were allowed to sit in the School premises with copies of the question papers but not the original question papers. 11. By going through Sections 10, 11 and 14 of the INC Act, Orissa Nurses and Midwives Examination Rules and Orissa Nurses and Midwives Registration Act, 1938 (State Act), it is the prerogative of the Board to conduct the Examination but the curriculum for teaching is the domain of the INC. This view has been taken in our judgment in Satyanarayan GNM Training College v. State of Odisha & others (W.P. (C) No.20765 of 2015) reported in 2016 (I) ILR-CUT-1102. This view has been taken in our judgment in Satyanarayan GNM Training College v. State of Odisha & others (W.P. (C) No.20765 of 2015) reported in 2016 (I) ILR-CUT-1102. So, the issuance of Admit Cards by the Board vide Annexure-3 series cannot be disbelieved at present as Board has not denied to have issued same even if the genuineness of the documents is subject to investigation in criminal case. But when the question papers were not provided because of the admitted fact that the petitioners being given admission beyond the increased strength of the necessary approved strength issued by the competent authority to the opposite party No.7, appearance of the petitioners in the Examination for GNM course cannot be taken as a valid Examination duly conducted by the Board. 12. It may not be out of place to mention that for the Examination original question paper is always supplied to the candidates who appear in the approved venue of any Examination. It is also stated by the petitioners that they have suspected the conduct of the opposite parties for not allowing them to the Centre declared by the Board and for not giving original question paper to attend the same. Thus, the School authorities, i.e., opposite party No.7 in order to cover up their lapses have allowed the petitioners to appear in the School and distributed the copies of the question papers. When the admission of the petitioners beyond the increased strength is not approved by the concerned authority under the above provisions of law, the petitioners cannot avail the benefit of the result yet to be declared on such papers of the GNM course. On the other hand, the Examination conducted for the petitioners is illegal. So, we are of the considered view that the petitioners are not entitled to appear in the Examination for GNM course and consequently are not entitled to be issued with the pass certificate. Point No.(i) is answered accordingly. POINT NO.(ii) 13. It is the contention of the learned counsel for the petitioners that because of overt act of the opposite party No.7 and the prospectus issued by the opposite party Nos.1 to 6 they took admission in the concerned School on payment of required admission fees and tuition fees. Thus, the petitioners became prey to the ultimate design of opposite party No.7. Thus, the petitioners became prey to the ultimate design of opposite party No.7. It is also found from the writ petition and the counter affidavit filed by the opposite party No.7 that the application for approval of the admission in the increased strength to the GNM course has been rejected since long and opposite party No.7 has active role for continuance of the petitioners in the increased strength. When increased strength is not approved, there should have been settlement of the dues of the petitioners by opposite party No.7. Instead opposite party No.7 allowed petitioners to deposit Examination fees but petitioners failed to appear valid GNM course Examination. Now the question arises that how the petitioners’ future can be taken care of when they are on the cross road of the necessary decision taken by the concerned authority to increase the strength. On the other hand, their admission being illegal but being persuaded by the opposite party No.7 have taken admission and allowed to appear pseudo Examination, the acceptance of admission fee, tuition fee and the Examination fees becomes improper and illegal. 14. It is reported in Bonnie Anna George v. Medical Council of India & another; (2014) 10 SCC 767 where Their Lordships observed at para-32: “32. Having regard to our above conclusions, we are convinced that depriving the Petitioner of the opportunity to opt for the available N.R.I. seat in M.D. General Medicine during the third counselling was wholly unjustified. Having reached the above conclusion when we come to the question of grant of relief as prayed for by the Petitioner in this Writ Petition, the Petitioner seeks for Mandamus to direct the second Respondent to permit her to shift her P.G. Course from M.D. Pathology to M.D. General Medicine in the available vacant seat. Though, we have found that the second Respondent was wholly unjustified in not making available the said vacant seat to the Petitioner, as the admission schedule fixed by Medical Council of India and this Court is being scrupulously followed, we do not find any extraordinary situation to violate the said schedule fixed by us. We have held in various decisions that the time schedule should be strictly adhered to and no mid stream admission should be allowed. We are, therefore, not inclined to give such a direction as prayed for by the Petitioner. We have held in various decisions that the time schedule should be strictly adhered to and no mid stream admission should be allowed. We are, therefore, not inclined to give such a direction as prayed for by the Petitioner. However, taking into account the grave injustice caused to the Petitioner for which the entire responsibility lies on the second Respondent, we are convinced that second Respondent should be mulcted with the liability of payment of appropriate compensation to the Petitioner for having snatched away her valuable right. Though, we would have been fully justified in directing exemplary amount by way of compensation, we feel it appropriate to fix it in a sum of Rs.5,00,000/- (Rupees five lakhs only). The second Respondent is, therefore, directed to pay the said sum of Rs.5,00,000/- apart from refunding the sum of Rs.13,000/- which the Petitioner had to pay for her readmission to the very same P.G. course of M.D. Pathology. We are confident that since the Petitioner was only fighting for her lawful rights, the same should not have any reflection in the approach of the second Respondent either directly or indirectly which would cause any disruption in her studies or in the completion of her course. It will always be open for the Petitioner to approach the appropriate forum or for that matter even this Court to seek for the redressal of her grievances, if any on that score. The compensation of Rs.5,00,000/- shall be paid to the Petitioner within two weeks from the date of production of copy of this order”. The aforesaid decision relates to the admission by the petitioner in P.G. course, i.e., M.D. Pathology but the petitioner had applied for admission in M.D. General Medicine under N.R.I. quota and in that case also she took admission basing on the prospectus issued by the respondents. Even if seats are lying vacant in General Medicine under N.R.I. category, the petitioner was not given admission in the said course. In that case the petitioner was deprived of the opportunity to undergo study in N.R.I. seat in M.D. General Medicine for the fact that the admission date was over and no time was left for filling up of the vacant seats. In that case the petitioner was deprived of the opportunity to undergo study in N.R.I. seat in M.D. General Medicine for the fact that the admission date was over and no time was left for filling up of the vacant seats. The Hon’ble Supreme Court categorically held that for the unjustifiable act of the opposite party No.2’s institution, the petitioner could not get admission in the desired seat under N.R.I. quota by the schedule date fixed by the Hon’ble Supreme Court of India and Medical Council of India. So, the Hon’ble Apex Court allowed appropriate compensation to the petitioner for having snatched away her valuable right to prosecute study M.D. in General Medicine. 15. Now adverting to the present case and applying the above principle as enunciated by Their Lordships, we are of the considered view that in the present case when petitioners have paid the admission fee and necessary other fees, the opposite party No.7 having failed to get approval for continuance of the petitioners in the increased strength, the petitioners are entitled to compensation in view of the decision of the Hon’ble Supreme Court in Bonnie Anna George’s case (supra). We, therefore, are of the view that since each of the petitioners has paid admission fee, tuition fee and Examination fees and lost their one year study in GNM course and there is no way to go out at the midst of the career for sole fault of the opposite party No.7, the opposite party No.7 should pay Rs.1,00,000/- as compensation to each of the petitioners. We are aware that the loss of career cannot be compensated in terms of money but in view of the fact and circumstances of the case and relying upon the aforesaid decision, it is just and appropriate to award such amount of compensation. Issue No.(ii) is answered accordingly. CONCLUSION 16. From the foregoing discussions, we are of the view that the petitioners being persuaded by the opposite party No.7 to take admission in the unapproved seats for GNM course with the knowledge of the opposite party No.2, the admission is illegal and consequently the appearance of the petitioners in the Examination is equally unjustified. We also held that each of the petitioners is entitled for compensation from the opposite party No.7 because of the latter’s conduct the petitioners suffered a lot. We also held that each of the petitioners is entitled for compensation from the opposite party No.7 because of the latter’s conduct the petitioners suffered a lot. So, we are of the considered view that the petitioners are not entitled to continue in GNM course in the opposite party No.7 institution but each of the petitioners is entitled to get payment of compensation of Rs.1,00,000/- payable by opposite party No.7 within a period of two months from today. The writ petition is disposed of accordingly. I. Mahanty, J. I agree.