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Rajasthan High Court · body

2023 DIGILAW 1924 (RAJ)

Bansal Nursing Char. Trust v. State

2023-10-09

PUSHPENDRA SINGH BHATI

body2023
JUDGMENT : 1. Since all the instant petitions involve a common controversy though with marginal variation in the contextual facts, therefore, for the purposes of the present analogous adjudication, the facts and the prayer clauses are being taken from the above-numbered S.B. Civil Writ Petition No. 1804/2021, while treating the same as a lead case; rival submissions of the parties and the observations of the Court, in the present order, would also be based, particularly, on the factual matrix of the lead case. 2. The prayer clauses read as under:- “It is, therefore, respectfully prayed that this writ petition may kindly be allowed and by an appropriate writ, order or direction:- i. the writ petition filed by the petitioner may kindly be allowed; ii. The record of the case may kindly be called for; iii. It may kindly be declared that the petitioner institution is entitled to take admission of students for B.Sc. Nursing Course for the academic session 2020-21 with intake capacity of 50 seats. iv. The respondents may kindly be directed to include petitioner in the list of institutions with intake capacity of 50 seats and allowed to take admission of students for B.Sc. Nursing Course for the session 2020-21. v. any other appropriate relief which this Hon’ble Court deems just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioner. vi. Costs of the writ petition be also awarded in favour of the petitioner.” 3. As the pleaded facts would reveal, the petitioner is an unaided self-financed educational society having its college, namely, Bansal College of Nursing, at Hanumangarh. The petitioner-institution filed an application for issuance of No Objection Certificate (NOC) for opening new B.Sc Nursing College, and the same was duly issued by the State Government on 30.01.2007, to run the B.Sc. Nursing Course with intake capacity of 50 seats. 3.1. In pursuance of issuance of such NOC, the petitioner-institution applied before the respondent-Indian Nursing Council (INC) for grant of recognition for undertaking B.Sc Nursing Course; whereafter, the respondent- INC sought NOC from the respondent-Rajasthan University of Health And Science (RUHS); thereupon, the respondent-RUHS vide its communication dated 07.02.2007, issued the requisite NOC to respondent-INC and stated that the RUHS has no objection in case the respondent-INC grants permission to the petitioner for staring the B.Sc. Nursing Course. Nursing Course. Thereafter, the respondent-INC vide order dated 18.08.2008 granted permission to the petitioner-institution for conducting the Course in question with intake capacity of 30 seats. 3.2. Subsequently, upon an application being filed and after conducting the necessary inspection, the respondent-INC granted permission to the petitioner institution to run the Course in question with the approved intake capacity of 30 seats, for the academic sessions 2009-10, 2010-11, 2011-12, 2012-13, 2013- 14 and 2014-15. Thereafter, the respondent-INC again conducted inspection of the petitioner-institution and granted permission to run the Course in question for the academic sessions 2016-17, 2017-18, and 2018-19 with same approved intake capacity. The respondent-RUHS also issued a list of institutions permitting them to run the Course in question with their respective intake capacity of students; in the said list, the name of the petitioner-institution was also included with intake capacity of 30 seats. The respondent-INC further extended such permission for the academic session 2019-20. 3.3 Thereafter, the respondent-INC and the respondent-State issued office notes dated 03.11.2020 and 09.12.2020, respectively, and stated inter alia that the respondent INC was having no power to grant recognition to the nursing institutions, as only the State Nursing Council/State Government is empowered to do so. 4. Learned counsel for the petitioner submitted that despite issuance of the clarification note by the State Government and the INC, the respondent-INC issued a list of the eligible institutions, including the petitioner-institution, to run the Course in question in the academic session 2020-21, with their respective intake capacity. 4.1. Learned counsel further submitted that the respondent-INC was having no authority to grant the NOC and recognition to the nursing institutions in the State; the petitioner was already having the NOC issued in its favour, with intake capacity of 50 seats, by the State Government, but despite the same, the respondent-INC granted NOC with intake capacity of 30 seats only, for the aforementioned academic sessions. 4.2. Learned counsel also submitted that the inspection conducted by the respondent-INC under Section 13 of the Indian Nursing Council Act, 1947, and the report thereof was submitted before the Executive Committee; however, the respondent-INC was having no power to proceed with such inspection report without forwarding the same to the institution, and therefore, the entire impugned action herein is highly illegal and arbitrary. 4.3. 4.3. Learned counsel further submitted that the petitioner-institution is a recognized institution under the provisions of law; when the State Government/State Nursing Council had already granted the necessary permission, with a particular number of the seats, then the respondent-INC had no power to reduce the intake capacity of the petitioner-institution. 4.4. Learned counsel also submitted that the petitioner-institution had already incurred a huge sum of money for establishing the institution to run the Course in question, and the students have already been allocated and admitted after allotment by the State Government. Therefore, as per learned counsel, the impugned action herein is contrary the provisions of law. 4.5. Learned counsel further submitted that in pursuance of the interim order dated 09.02.2021 passed by this Court, the petitioner-institution had admitted the students as per the NOC granted by the State Government and the students are pursuing their studies in the petitioner-institution. 5. On the other hand, learned counsel appearing on behalf of the respondents opposed the aforesaid submissions made on behalf of the petitioner. 5.1. Learned counsel for respondent-RUHS submitted that the petitioner-institution had applied for affiliation for the Course in question for intake capacity of 30 seats on 28..01.2020 and the petitioner neither submitted any application for affiliation with increase in the number of seats from 30 to 50 seats upto the last date i.e 31.07.2020, nor submitted any affiliation fee in that regard. 5.2 It was further submitted that the State Government has granted the NOC to the petitioner-institution in the year 2007 to run the Course in question with intake capacity of 50 seats, but since the petitioner-institution had applied for affiliation with intake capacity of 30 seats by paying the affiliation fee to that extent only, therefore, the respondent-RUHS has rightly included the petitioner-institution in counseling process with regard to intake capacity of 30 seats only. 5.3. Learned counsel for the respondent-State submitted that the petitioner-institution did not submit the requisite application in the prescribed format within the stipulated period seeking enhancement in the number of seats, as claimed to have been permitted/approved by the State Government, and therefore, the petitioner-institution was not included in the counseling with regard to intake capacity of 50 seats for the Course in question. 5.4. 5.4. Learned counsel for the respondent-INC submitted that it is not disputed that the power to grant recognition to the nursing institutions in the State vests with the State Nursing Council/ State Government, and that, the respondent-INC does not claim the same in regard to running of the Course in question in any of the institutions in the State, but the INC is having the right to inspect the Nursing institutions, so as to ensure that such institutions maintain the minimum requisite standards of nursing education, as it pertains to health services in the State. 5.4.1. It was further submitted that the respondent-INC had conducted the inspection of the petitioner-institution for the first time on 05-06.05.2008, in terms of Sections 13 and 14 of the Indian Nursing Council Act, 1947, and thereafter, on the basis of the said inspection, the Executive Committee found the petitioner-institution to be suitable for 30 seats only, as the strength of the seats commensurates to the availability of the infrastructure, clinical facility and teaching faculty of the institution concerned. 5.4.2. It was also submitted that as per the general practice, the NOC is granted to the concerned institution(s) subject to its meeting the guidelines of the Indian Nursing Council (INC). In the present case, after the inspection of the petitioner-institution, it was found that the institution is suitable for 30 seats only, and therefore, the entire action as taken herein, is justified in law. 5.5. It was further submitted that the petitioner-institution was deficient in many aspects, like not having proper teaching faculty and proper infrastructural facilities, and built up area of the hostel was only 22,000 sq.ft. and only 20 students were residing therein; on count of the fact that such deficiencies have not been removed by the petitioner-institution, it is not eligible for grant of NOC/permission to run the Course in question with intake capacity of 50 seats. 6. Heard learned counsel for the parties as well as perused the record of the case. 7. This Court observes that the petitioners-institutions applied for the NOC before the State Government and the same was granted by the State Government with intake capacity of 50 seats on 30.01.2007. 6. Heard learned counsel for the parties as well as perused the record of the case. 7. This Court observes that the petitioners-institutions applied for the NOC before the State Government and the same was granted by the State Government with intake capacity of 50 seats on 30.01.2007. In pursuance of issuance of such NOC, the petitioners-institutions applied before the respondent-INC for grant of recognition for the course in question; whereafter, the respondent- INC sought NOC from the respondent-RUHS, and thereupon, the respondent-RUHS conveyed its no objection to the respondent-INC, in the event of grant of permission by the respondent-INC to the petitioners-institutions to run the Course in question. Thereafter, the respondent-INC, vide order dated 18.08.2008, granted permission to the petitioners-institutions for conducting the Course in question with intake capacity of 30 seats, which was continued with the same intake capacity for the subsequent years as well. 8. This Court further observes that in Special Appeal (D.B.S.A.W. No. 508/2018-Indian Nursing Council Vs Kamaksha & Ors.), a Division Bench of this Hon’ble Court vide order dated 02.09.2019 observed that the respondent-INC does not have power to recognize the nursing institutions, but has ample powers to conduct the necessary inspection of the institution(s) concerned. Relevant portion of the said order is reproduced as hereunder:- “It is, therefore, clear from the above provisions that the Central Council acting through the Executive Committee has ample powers to inspect recognized institutions, colleges etc. which are recognized by the State Council. This is in furtherance to the Union’s powers of coordination and determination of standards under Entry No. 66 of the List-1 of the VII Schedule to the Constitution of India. Being primarily, a standard setting and coordinating body, the Council is empowered with consequential power to ensure compliance, by way of constant oversight. At the same time, this Court is of the opinion that such a power of inspection cannot be invoked arbitrarily and must be for some reason expressly recorded in its files. The mode of taking action pursuant to any deficiency found would also entail active involvement of the State Council, which is primarily seized of matters regarding recognition, enforcement etc. Natural justice and a degree of fairness is involved and has to necessarily be followed if recognition, once granted, is sought to be withdrawn. The mode of taking action pursuant to any deficiency found would also entail active involvement of the State Council, which is primarily seized of matters regarding recognition, enforcement etc. Natural justice and a degree of fairness is involved and has to necessarily be followed if recognition, once granted, is sought to be withdrawn. In the light of the above reasons and the formulation of law approved by the Full Bench of the Kerala High Court clearly emerges that the Central Council does not have the power to recognise institutions, which is a power vested with the State Council. The Central Council through the Executive Committee can ensure inspection, as and when needed and based upon such inspection reports, which of course has to be supplied to the concerned institution and the State Government. Inputs are to be received under Section 13 from the State, after which, adverse action can be taken, if warranted. During the course of the hearing, learned counsel has submitted that the Central Council would have the power to grant recognition as is evident from Section 3. In the opinion of this Court, that argument is not correct or accurate. Section 3 deals with the constitution of the committee and election to the Central Council. For the purposes of election, the consideration of recognition would be in accordance with the standards that the Central Committee Council might prescribe. However, those are quite independent from the autonomy granted by the State to its State Committee to recognise or refuse to recognise institutions falling within the territory of each State.” 8.1. This Court also observes that the State Government and the respondent-INC also issued communications, wherein the aforementioned proposition was reflected. 9. This Court further observes that in the present case, it is clear that the petitioners-institutions have NOC issued by the State Government to run the Course in question with intake capacity of 50 seats, but the respondent-INC allowed the petitioners-institutions to run the Course in question with intake capacity of only 30 seats; after inspection of the petitioners-institutions particularly, with regard to the infrastructural facilities available in the institutions. Thereafter, the respondent-INC has no power to recognize the nursing institutions, and that, the petitioners-institutions admitted the students as per the NOC issued to them by the State Government. 9.1. Thereafter, the respondent-INC has no power to recognize the nursing institutions, and that, the petitioners-institutions admitted the students as per the NOC issued to them by the State Government. 9.1. This Court also observes that the students of the petitioners-institutions are continuing with the Course in question and were provisionally allowed to participate in the counselling process by virtue of an interim order dated 09.02.2021 passed by this Hon’ble Court; the relevant portion of the said interim order is reproduced as hereunder: “In the meanwhile, if the counselling is still in progress, the petitioner – institution may be provisionally included for allotment of students for admission to BSC Course for upcoming academic year 2020-21 as per the annual intake capacity of 60 seats sanctioned by the State/Rajasthan Nursing Council. However, it is made clear that inclusion of petitioner – institution for allotment of students and admission accorded in pursuance thereto, shall not create any right of equity in favour of petitioner – institution or the students admitted to the course pursuant to this interim order. The admission accorded shall remain subject to the decision of the writ petition.” 10. This Court further observes that it is clear that the petitioners-institutions are recognized institutions having been issued the NOC by the State Government to run the Course in question with intake capacity of 50 seats, and even the respondent-INC granted recognition to them for running the Course, though with intake capacity of 30 seats. The petitioners-institutions admitted the students as per the State Government’s NOC, and therefore, it is not a case where any irregularity or illegality was committed by the petitioners-institutions, in granting such admissions. 11. This Court also observes that the students are pursuing the Course in question in the petitioners-institutions, and were also allowed to participate in the counselling process by virtue of the aforementioned interim order. The students, who took admission in the petitioners-institutions to pursue the Course in question are young students, and cannot be penalized or made to suffer only on technical ground regarding which authority has the power to issue NOC for running the Course in question, with a particular intake of seats. The students, who took admission in the petitioners-institutions to pursue the Course in question are young students, and cannot be penalized or made to suffer only on technical ground regarding which authority has the power to issue NOC for running the Course in question, with a particular intake of seats. Therefore, at this stage and looking into the interests of the students, the students who were admitted in the petitioners-institutions and are continuing the Course in question with intake of 50 seats in academic session of 2020-21 are ordered to be allowed to continue with their studies in the Course. 12. Thus, in view of the above, the present writ petitions are disposed of with liberty to the petitioners-institutions to apply for fresh NOC for the next academic session with enhanced intake of seats in the Course in question, before the State Government/State Nursing Council within a period of 15 days from today, and the cases of the petitioners-institutions, with regard to such NOC, shall be considered and decided by the State Government/State Nursing Council, within a period of 45 days thereafter, strictly in accordance with law, in case the institutions desire to further continue with the Course in the next academic session. Such decision taken by the State Government/State Nursing Council/INC shall remain binding on all the institutions, for intake capacity/future running of the Course in question. Thus, it is directed that the fate of the institution(s) for the intake capacity/future running of the Course in question shall be as per the decision of the State Government, while keeping into consideration the stand of the INC and State Nursing Council. 12.1. It is needless to say that the respondent-INC will be free to exercise its powers, as per the order passed in the case of Indian Nursing Council Vs Kamaksha & Ors. (Supra). This Court thus, directs the respondents to regularize the students, who were admitted as per State Government’s NOC and were allowed to participate in the counselling process by virtue of the aforementioned interim order dated 09.02.2021 passed by this Hon’ble Court. All pending applications also stand disposed of.