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2023 DIGILAW 437 (UTT)

Poonam Almiya v. State of Uttarakhand

2023-08-01

RAVINDRA MAITHANI

body2023
JUDGMENT : The petitioner applied for B.Sc. Nursing Four Year Course from the respondent No.3, Naincy College of Nursing, Jeolikote Nainital (“the College”). She applied for her registration with the respondent no.2, Uttarakhand Nurses & Midwives Council, Village Danda Lakhond, P.O. Gujrara, Sahastradhara Road, Near Rajiv Gandhi Playground, Dehradun (“the Council”). But, it has not been done. Hence, the petitioner is before the Court seeking direction from the respondent no. 2 for registering her as a Nurse in accordance with law. 2. Heard learned counsel for the parties and perused the record. 3. It is the case of the petitioner that after intermediate examination, she took admission in B.Sc. Nursing Four Years Course in the College. She completed her course. She was given course completion certificate on 28.07.2022. Thereafter, the respondent no.4, Hemwati Nandan Bahuguna Uttarakhand Medical Education University, (“the University”) also provided her provisional certificate for B.Sc. Nursing on 04.07.2022. But, when the petitioner approached the respondent no.2, Council for registering her as a Nurse, her request has not been processed. Hence, the petition. 4. The respondent no.2, the Council in its counter affidavit has stated that the eligibility for admission in Four Years Nursing Course has been determined by the Indian Nursing Council and according to it, for such admission the minimum 45% marks in subjects Physics, Chemistry and Biology in 12th standard is mandatory. The petitioner, according to respondent no.2 had failed in Chemistry in her 12th standard examination. She does not possess the educational qualification, as fixed by Indian Nursing Council for her admission in B.Sc. Four Years Nursing Course. 5. In its counter affidavit, the respondent no.3, the College has stated that the petitioner ought to know as to what was the minimum qualification for her admission. In para 23 of its counter affidavit, Director of the respondent no.3, the College has stated that “it is submitted the petitioner also known very well that she failed in the chemistry subject but she hidden the fact during taking the admission in her graduation. Just saying that student/petitioner cannot be made to suffer for the fault of university or college at such belated stage, the petitioner cannot escape from her responsibility during taking admission in B.Sc. Nursing. It is also her duty to disclose all the facts before the admission counsellor. Just saying that student/petitioner cannot be made to suffer for the fault of university or college at such belated stage, the petitioner cannot escape from her responsibility during taking admission in B.Sc. Nursing. It is also her duty to disclose all the facts before the admission counsellor. Rest of the averments made in the para are not accepted and strongly denied, need no comments.” 6. The respondent no.4, the University in its counter affidavit has simply stated that the University Act, as per the information supplied by the respondent no.3, the College in para 13 of the counter affidavit filed on behalf of the respondent no.4, the University, it is categorically asserted that “however, it is the admitted case of the petitioner that she was fail in subject Chemistry in 12th standard at the time of admission in B.Sc. Nursing Course and she provided each and every documents before the Counselling Committee of College. The said documents with regard to the admission form, Senior School Certificate Examination 2017 and Marksheet have been sent to the University on 21.07.2023 through mail. In the admission form the B.Sc. Nursing the petitioner mentioned only total percentage of intermediate i.e. 60%. Copy of the documents of the petitioner are being filed herewith and marked as Annexure No.CA-3 to this counter affidavit.” 7. Learned counsel for the petitioner would submit that the petitioner never concealed any fact while taking admission in the respondent no.3, College. Alongwith her admission form, she had enclosed each and every mark sheets that were required. She was admitted. She could not be expected to know as to what was the eligibility criteria for admission in the B.Sc. Four Years Nursing Course. She cleared the examination in 1st class marks. Now, after five year studying through, she is being denied the fruits of her course, which she had undergone. Learned counsel would submit that it, in fact, would ruin her future prospects and career as well. Therefore, directions need to be issued to the respondents authorities to register the petitioner as a qualified Nurse. In support of his contention, learned counsel has taken reference to the judgment in the case of Abha George and others Vs. All India institute of Medical Sciences (AIIMS) and Another, 2022 SCC OnLine Del 366. 8. In the case of Abha George (supra), the candidates were admitted in M.Sc. In support of his contention, learned counsel has taken reference to the judgment in the case of Abha George and others Vs. All India institute of Medical Sciences (AIIMS) and Another, 2022 SCC OnLine Del 366. 8. In the case of Abha George (supra), the candidates were admitted in M.Sc. Nursing, but two months thereafter, there admission was cancelled on the ground that, in fact, there B.Sc. Nursing final year result was declared beyond the cut-of-date. Following the principles of law, as laid down in the case of Rajendra Prasad Mathur Vs. Karnataka University and another, AIR 1986 Supp. SCC 740, the Hon’ble Supreme Court in that case has held that the blame lies more upon the institution than the petitioner and the order cancelling the admission of such candidates were quashed. 9. Learned counsel for the respondent no. 2 the Council would submit that the Council had prescribed the minimum educational qualification for taking admission in B.Sc. Four Years Course. It is submitted that the petitioner did not possess 45% aggregate marks in Physics, Chemistry and Biology. She is less with 12% marks. She is failed. She could not clear the Chemistry. She is failed in that subject. Therefore, she was not eligible. 10. Learned counsel for the respondent no.3 the College would submit that the petitioner was well aware that for admission in B.Sc. Four Years Nursing Course, 45% aggregate marks were required in Physics, Chemistry and Biology in 12th Grade, which she did not possess. It is argued that her sister was studying in the same college. He would submit that at the time of admission, the petitioner filled the counselling form in which she did not record her total marks obtained in Physics, Chemistry, Biology and English. She simply filled her aggregate in five best subject as 60%. She did not fill the form properly and individual marks in each subject were kept blank. Reference has been made to the mark sheet of the petitioner for Senior School Examination, 2017 to indicate that, in fact, in Chemistry, she had secured only 31 marks. Learned counsel would also refer to the application form for B.Sc. Nursing Four Years Course submitted by the petitioner to argue that there also the petitioner had disclosed her aggregate of best five subjects. Learned counsel would also refer to the application form for B.Sc. Nursing Four Years Course submitted by the petitioner to argue that there also the petitioner had disclosed her aggregate of best five subjects. Learned counsel would submit that, in fact, every document was forwarded to the University, due to oversight, the error could not be detected at the time of admission because the respondent no.3, College was taking 150 students at a time; the Teachers were in the counselling, so it might have not come to their notice that the petitioner has less than eligible marks. 11. Learned counsel for the respondent no.4 the University would submit that they appeared as per the information supplied by the respondent no.3, the College. 12. The following facts are not in dispute:- (i) The petitioner appeared for Class 12th examination conducted by Central Board of Secondary Education (“CBSE”). She was declared pass as per the mark sheet and certificate issued by the CBSE. (ii) The petitioner did apply for her admission in the respondent no.3 College in B.Sc. Four Years Nursing Course. She filled the counselling form. There are some columns which are not filled. But, the petitioner did file her mark sheets alongwith application form. (iii) The aggregate in best five subjects at 12th standard of the petitioner. According to CG Pay multiplication is 60%. This is what she recorded in her counselling. (iv) In her application form also, the petitioner did disclose her intermediate marks. She did not conceal any of her documents pertaining to the marks obtained by her in 12th standard. (v) It is not the case of either, the respondent no.3, the College or the respondent no.4, the University that the petitioner committed any forgery or deliberately concealed any document. She did file the documents. 13. On behalf of the respondent no.3, the College it is being submitted that due to oversight, it could not be detected that the petitioner, in fact, had 44% marks in aggregate in Physics, Chemistry and Biology and not 45% which was required. 14. This Court cannot presume that the petitioner knew that the minimum marks required for admission in B.Sc. Four Years Course is 45% aggregate in Physics, Chemistry and Biology. 15. The petitioner did submit her documents and her mark sheets. She has disclosed her five subjects marks obtained in 12 standard. 16. 14. This Court cannot presume that the petitioner knew that the minimum marks required for admission in B.Sc. Four Years Course is 45% aggregate in Physics, Chemistry and Biology. 15. The petitioner did submit her documents and her mark sheets. She has disclosed her five subjects marks obtained in 12 standard. 16. In the case of Rajendra Prasad Mathur (supra), the Hon’ble Supreme Court in a similar situation observed in para 8 as hereunder:- “8. We accordingly endorse the view taken by the learned Judge and affirmed by the Division Bench of the High Court. But the question still remains whether we should allow the appellants to continue their studies in the respective engineering colleges in which they were admitted. It was strenuously pressed upon us on behalf of the appellants that under the orders initially of the learned Judge and thereafter of this Court they have been pursuing their course of study in the respective engineering colleges and their admissions should not now be disturbed because if they are now thrown out after a period of almost four years since their admission their whole future will be blighted. Now it is true that the appellants were not eligible for admission to the engineering degree course and they had no legitimate claim to such admission. But it must be noted that the blame for their wrongful admission must lie more upon the engineering colleges which granted admission than upon the appellants. It is quite possible that the appellants did not know that neither the Higher Secondary Examination of the Secondary Education Board, Rajasthan nor the first year BSc examination of the Rajasthan and Udaipur Universities was recognised as equivalent to the Pre-University Examination of the Pre-University Education Board, Bangalore. The appellants being young students from Rajasthan might have presumed that since they had passed the first year BSc examination of the Rajasthan or Udaipur University or in any event the Higher Secondary Examination of the Secondary Education Board, Rajasthan they were eligible for admission. The fault lies with the engineering colleges which admitted the appellants because the Principals of these engineering colleges must have known that the appellants were not eligible for admission and yet for the sake of capitation fee in some of the cases they granted admission to the appellants. The fault lies with the engineering colleges which admitted the appellants because the Principals of these engineering colleges must have known that the appellants were not eligible for admission and yet for the sake of capitation fee in some of the cases they granted admission to the appellants. We do not see why the appellants should suffer for the sins of the managements of these engineering colleges. We would therefore, notwithstanding the view taken by us in this Judgment, allow the appellants to continue their studies in the respective engineering colleges in which they were granted admission. But we do feel that against the erring engineering colleges the Karnataka University should take appropriate action because the managements of these engineering colleges have not only admitted students ineligible for admission but thereby deprived an equal number of eligible students from getting admission to the engineering degree course. We also endorse the directions given by the learned Judge in the penultimate paragraph of his Judgment with a view to preventing admission of ineligible students.” 17. In the instant case also, as stated, the petitioner may not be presumed to know as to what was the minimum marks prescribed by the Nursing Council for admission in B.Sc. Four Years Nursing Course. She had submitted her documents. It is not the case of any of the respondents that the petitioner at any stage, withheld the documents and gave forged documents. The percentage of marks which she filled is aggregate of five best subjects. If some of the column of the counselling form are blank, she could have been asked to fill the blanks. If documents were with the counselling team. What is being argued is that some of the Teachers, who have put in four to five years of service in the respondent no.3, the College were in the counselling; they had to admit about 160 students, therefore, it is an oversight that the mark sheet of the petitioner could not be checked properly. This is admittedly, the mistake of the respondent no.3, the College. 18. The petitioner did not make any misrepresentation, did not play any fraud and did not conceal anything and, in fact, disclosed every documents of her. The petitioner had already undergone four years course, one year internship. She has given four youthful years of her life for the course. She has completed the course. 18. The petitioner did not make any misrepresentation, did not play any fraud and did not conceal anything and, in fact, disclosed every documents of her. The petitioner had already undergone four years course, one year internship. She has given four youthful years of her life for the course. She has completed the course. She has been provided certificate by the respondent no.4, the University. 19. In view of above facts, this Court is of the view that it would grave injustice to the petitioner, if now the respondent no.2 decline to register her. Accordingly, the writ petition deserves to be allowed. 20. The writ petition is allowed. 21. The respondent no.2 Uttarakhand Nurses & Midwives Council is directed to register the petitioner based on her course completion certificate given by the respondent no.3, the College and provisional certificate given by the respondent no.4, the University.