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2019 DIGILAW 255 (KER)

Kerala Private Hospitals Association, Head Quarters -Aswini Hospital Private Limited v. State of Kerala, Represented By Its Secretary, Department of Health and Family Welfare

2019-03-14

SHAJI P.CHALY

body2019
JUDGMENT : This writ petition is filed by the petitioner Association seeking to quash Exts.P2, P3, P4 and P6 orders passed by the State Government, University of Kerala, University of Calicut and the Kerala Nurses and Midwives Council respectively, exempting nursing students admitted on or after 2007 from doing internship. Brief material facts for the disposal of the writ petition are as follows: 2. Petitioner is an Association of Institutions which runs Hospitals in the Private Sector. It is challenging the validity of Ext.P2 order issued by the Government of Kerala, by which the internship of one year prescribed for nursing students was abolished. It is the case of the petitioner that, there is no law which authorises the Government to issue an order like Ext.P2. That apart, the Government further directed the Universities to change the syllabus accordingly, and the University of Kerala and the University of Calicut have issued Exts.P3 and P4 orders, implementing the said direction, and thereby abolishing internship. It is also pointed out that, Exts.P3 and P4 orders are bad, since they are issued on the basis of the direction issued by the State Government and without having an independent assessment. It is also an interference with the jurisdiction enjoyed by the Universities constituted under the respective University Acts. 3. So much so, it is submitted that, as a result of the abolition of internship, the hospitals would be forced to employ nurses without any kind of practical experience. In the circumstances, petitioner passed a resolution resolving that only persons having one year's experience would be recruited by the members of the petitioner association. But, then the 2nd respondent, i.e., the Kerala Nurses and Midwives Council interferes with the matter and vetoed the said decision holding that any person who has a degree in Nursing is entitled to be appointed as Nurse, as per Ext.P6 order. Therefore, according to the petitioner, the nurses who come out of nursing colleges without any practical experience will have to be directly employed as regular nurses, and therefore, the orders specified above suffers from the vice of arbitrariness and illegality susceptible to be interfered with by this Court under Article 226 of the Constitution of India. 4. The 2nd respondent has filed a statement, refuting the allegations and claims and demands raised by the petitioner. 4. The 2nd respondent has filed a statement, refuting the allegations and claims and demands raised by the petitioner. Among other contentions, it is stated that, six months internship is included in the B.Sc. Nursing Syllabus, and nursing is a practice based profession. Therefore, theoretical instructions and clinical practice is blended throughout the programme. The Nursing curriculum ensures preparation of nurses to assume responsibilities as professional, competent nurses and midwives in providing promotive, preventive, curative and rehabilitative services. Further, the total hours of theory and practical sessions extended to the students of B.Sc. Nursing as per 2002 Syllabus of Mahatma Gandhi University and as per 2010 Syllabus of Kerala University of Health Sciences are as follows: Mahatma Gandhi University, 2002 Syllabus Year Theory hours Practical hours I 800 640 II 465 1160 III 360 1280 IV 320 1320 Total 1945 4400 Kerala University of Health Sciences, 2010 Syllabus Year Theory hours Practical hours Library work/self study/Co-curriculum activities I 890 495 295 II 410 1200 70 III 410 1225 45 IV 370 1200 110 Total 2080 4120 520 5. That apart, the students undergo supervised practice in the hospital. The student-patient ratio is 1:3 and student-teacher ratio is 1:10 as per Indian Nursing Council norms. Most of the private hospitals in Kerala are running Nursing Educational Programmes. The Kerala Nurses' & Midwives' Council is very particular that the parent institutions should provide the students with adequate pre-clinical laboratory practice and clinical experience as per the Syllabus. If adequate laboratory practice and clinical experience are provided by the parent institution, there will not be any question of inexperience of fresh Registered Nurses and Registered Midwives. In Kerala, Basic B.Sc. Nursing was started in the year 1972, and since then the duration of Course had been 4 years. Only 2003, 2004 and 2005 batches of B.Sc. Nursing Graduates underwent one year Internship/Compulsory Nursing Service. Therefore, the Internship/Compulsory Nursing Service was started only after registration with Kerala Nurses and Midwives Council as Registered Nurse/Registered Midwife. 6. It is also pointed out that, the decision taken by the petitioner association on 14.12.2011 is against the provisions of the Nurses and Midwives Act, 1953. Nursing Graduates underwent one year Internship/Compulsory Nursing Service. Therefore, the Internship/Compulsory Nursing Service was started only after registration with Kerala Nurses and Midwives Council as Registered Nurse/Registered Midwife. 6. It is also pointed out that, the decision taken by the petitioner association on 14.12.2011 is against the provisions of the Nurses and Midwives Act, 1953. Section 30(1) of the Act provides that no dispensary, hospital, infirmary, Lying-in-hospital, sanatorium, surgery, nursing home or other similar institution shall employ any person as a nurse, midwife, auxiliary nurse-midwife, health visitor or dhai, unless such person is a nurse, midwife, auxiliary nurse-midwife, health visitor or dhai, registered under the Act. Further, Sec.32(1) provides that no person other than a nurse, midwife, auxiliary nurse-midwife, health visitor or dhai registered under the Act shall practice or hold himself out either directly or by implication as a practising nurse etc. Therefore, it is clear that, in order to work as a Registered Nurse/Midwife, only the registration is sufficient, and one year work experience after registration is not mandatory. 7. It is further pointed out that, the 2nd respondent Council has jurisdiction and authority to interfere with the decision of the petitioner association, since it was found to be against the provisions of Act, 1953, and other Rules and Regulations issued by the State as well as the Central Government. Furthermore, as per Sec.26(2) of Act, 1953 and Rule 84 of the Kerala Nurses and Midwives Rules, 1972, the 2nd respondent is vested with powers to withdraw recognition of any institution, if the Council is of the opinion that training in an approved and recognized institution is not being properly carried on or that the authorities of the institutions have not carried out the directions and suggestions, if any, of the Council or in the opinion of the Council the institution is not fit to be continued as a recognized one. Therefore, the sum and substance of the contention put forth by the 2nd respondent is that, the 2nd respondent is not insisting for any compulsory bond system of one year experience by the Nursing School Managements. 8. The 3rd respondent has also filed a counter affidavit, justifying the stand adopted by it and almost in similar lines with the counter affidavit filed by the 2nd respondent. 9. I have considered the rival submissions made across the Bar and perused the pleadings and the documents on record. 10. 8. The 3rd respondent has also filed a counter affidavit, justifying the stand adopted by it and almost in similar lines with the counter affidavit filed by the 2nd respondent. 9. I have considered the rival submissions made across the Bar and perused the pleadings and the documents on record. 10. The discussion of facts made above would make it clear that, the sole question to be considered is, whether any interference is warranted to Ext.P2 order passed by the State Government abolishing internship for nurses/midwives after 2007, or such other periods. It is clear from the provisions of the Act, 1953, and the Rules thereunder that the Act and the Rules is not insisting for any internship after completion of the course by a nursing student. True, as per the Government notification internship was included for a period of six months after the completion of the course. However, the same was taken away by the State Government realizing the situation that no such insistence is compulsory as per the provisions of the Act, 1953. Therefore, the action of the State Government by giving up the condition of internship to the nursing students is in accordance with law. When such a decision is taken by the Government, the Universities were also at liberty to follow the Government order and take appropriate consequential action. Therefore, it cannot be said that Exts.P2, P3, P4 and P6 are bad in any circumstances, since the Government as well as the Universities are vested with ample powers to take its own decision in accordance with law. 11. Petitioner is not having a case that such a decision was taken by the State Government and the Universities against any of the existing provisions under law. On the other hand, the Council has realized that, the students are undergoing training and securing practical experience while undertaking the study in accordance with the curriculum. Therefore, the challenge made against the orders passed by such authorities cannot be sustained under law, there being no arbitrariness or illegality in such orders passed. On the other hand, the Council has realized that, the students are undergoing training and securing practical experience while undertaking the study in accordance with the curriculum. Therefore, the challenge made against the orders passed by such authorities cannot be sustained under law, there being no arbitrariness or illegality in such orders passed. However, Ext.P5 decision was taken by the petitioner Association that, all the Nurses should be appointed only if they are sufficiently qualified and have at least one year experience in a healthcare institution in Kerala, and since the training/internship is terminated, no training shall be given to any one for the purpose of gaining experience, which was an authoritarian act against the regulatory measures under law and interference with the powers exercisable by the authority under the provisions of law discussed above. 12. As is stated above, the Kerala Nurses and Midwives Council, by virtue of the powers conferred under Act, 1953, is empowered to regulate the activities of the private Hospitals, if it is interfering in any way with the provisions of Act, 1953, and the Rules/Regulations made thereunder. It was by exercising the said power, Ext.P6 circular dated 29.12.2011 is issued, and stipulated that the decision taken by the Private Hospital Managements to insist one year experience for the appointment of staff nurses in Private Hospitals is against the provisions of the Nurses and Midwives Act, 1953, and decided to inform all institutions conducting Nursing Programmes that any person who has been registered with the Kerala Nurses and Midwives Council as a Registered Nurse and Registered Midwife after prescribed course of study in an institution recognized by the Kerala Nurses and Midwives Council and the Indian Nursing Council is eligible to practise as Staff Nurse in all kinds of healthcare settings in the State. 13. On an appreciation of the rival contentions and the provisions of law discussed above, I am of the considered view that the 2nd respondent is empowered to issue Ext.P6 Circular, which is binding on all the Private Hospitals as per the provisions of Act, 1953. In that view of the matter, it cannot be said that Ext.P6 suffers from the vice of arbitrariness or illegality justifying interference of this Court. In that view of the matter, it cannot be said that Ext.P6 suffers from the vice of arbitrariness or illegality justifying interference of this Court. Having regard to the facts and circumstances, I am of the considered view that the petitioner has not made out any case to interfere under Article 226 of the Constitution of India. Resultantly, the writ petition fails, accordingly it is dismissed.