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KAMATCHIAMMAN versus INDIAN NURSING COUNCIL

High Court of Madras

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Kamatchiamman v. Indian Nursing Council - WP.Nos.25932 of 2007 [2007] RD-TN 2874 (3 September 2007)

IN THE HIGH COURT OF JUDICATURE AT MADRAS



DATED:03.09.2007

CORAM:

THE HON'BLE MR. JUSTICE V. DHANAPALAN

W.P. Nos.25932, 25933, 25936, 25937, 26808, 26857 and 27174 of 2007 and

M.P. Nos.1 & 2 in each of the writ petitions

W.P. No. 25932 of 2007

Sree Kamatchiamman Educational Trust

represented by its Chairman

V. Risihkesavan

148, G.S.T. Road

Chromepet

Chennai  600 044 Petitioner vs.

Indian Nursing Council

represented by Secretary

Combined Councils Building

Kotla Road, Temple Lane

New Delhi  100 002 Respondent Prayer in W.P. No.25932 of 2007:

Writ Petition filed under Article 226 of the Constitution of India for issuance of a writ of certiorarified mandamus calling for the records relating to the letter dated 13.06.2007 having ref.no.F.No.18-29/3263-INC and quash the same and consequently direct the respondent to inspect the B.Sc. Nursing College set up by the petitioner in Kancheepuram District, State of Tamil Nadu forthwith and grant recognition before the end of August 2007 under Section 10 of the Indian Nursing Council Act, 1947 to the B.Sc. Nursing degree course to be conducted by the petitioner starting from the academic year 2007-2008. For petitioner Mrs. Nalini Chidambaram, Senior Counsel in W.P. No.25932/2007 for M/s. Gladys Daniel & Uma For respondent Mr. V.S.R. Krishna for Mr. M.T. Arunan COMMON ORDER



This batch of seven writ petitions is decided by a common order since the issue involved is the same.

2. The case of the petitioners, in a nutshell, is as under: The petitioners which are Charitable and Educational Trusts, with the intention of starting Nursing Colleges/Nursing Schools, applied to the Health & Family Welfare Department of Government of Tamil Nadu and opened Joint Fixed Deposit accounts with the Directorate of Medical Education, Chennai (DME, Chennai). The petitioners' Nursing Colleges/Schools were inspected by the DME, Chennai and Inspection Report was sent by the DME, Chennai to the State Government for grant of No Objection Certificate to the petitioners to start College/School of Nursing. The State Government too passed orders, in accordance with the regulations fixed by the Indian Nursing Council, to the effect of granting No Objection Certificate to the petitioners to start College/School of Nursing. One of the conditions stipulated therein is that the petitioners should obtain recognition/suitability/affiliation from the Tamil Nadu Nurses and Midwives Council, Chennai and Indian Nursing Council, New Delhi and Dr.MGR Medical University before admitting students. On receipt of Government Orders passed to the above effect, the petitioners wrote to the respondent to send its Inspection Committee to inspect their respective institutions. Having come to know that the cut-off date for the receipt of applications by the respondent is 31.01.2007, the petitioners requested the respondent to exempt them from the cut-off date and honour their applications. In addition to applying to the respondent, the petitioners, as stipulated by the respective Government Orders, applied for approval from the Tamil Nadu Nurses & Midwives Council and got recognition to conduct the respective programmes on condition that they should obtain affiliation from the Tamil Nadu Dr. MGR Medical University/suitability order from Indian Nursing Council for the academic year 2007-2008 before admission of students. Further, the petitioners applied to the Tamil Nadu Dr. MGR Medical University as well for Certificate of Registration for their affiliation to the University pursuant to which inspection was conducted by the University and the University, to grant provisional affiliation, awaits registration of the petitioners with the respondent. This being the position, the Health & Family Welfare Department of the Government of Tamil Nadu, recognising the need to have more number of Nursing Colleges/Nursing Schools, requested the respondent to extend the last date for submission of proposal for the academic year 2007-2008 stating a specific reason that there are a number of requests from various institutions pending in Government at various levels, but in vain.

3. Aggrieved by the respective communications of the respondent stating that their proposals to start Colleges/Schools of Nursing are not considered for the academic year 2007-2008 since they were received after the cut off date of 16.02.2007, the petitioners have filed the present writ petitions for a writ of certiorarified mandamus as stated above.

4. In the counter filed by the respondent, it has been mainly contended that when admittedly, the petitioners did not submit their complete proposals for starting College/School of Nursing within the prescribed in spite of wide publicity given in prominent newspapers all over the country giving the last date for receipt of complete proposals, the respondent cannot consider the petitioners' case for the academic year 2007-2008. It is further contended that the respondent has not at all considered any proposal from any institution after the due date, as alleged by the petitioners.

5. Heard Mrs. Nalini Chidambaram, learned Senior Counsel and Mr. Raja Srinivas and Mr. S.T.S. Murthi, learned counsels appearing for the petitioners and Mr. V.S.R. Krishna, learned counsel appearing for the respondent.

6. The learned counsels for the petitioners have strenuously contended that the cut-off date for receipt of proposals to start College/School of Nursing is not statutory but only for the convenience of the respondent and in special cases, the respondent has relaxed the said guideline and inspected Colleges even in cases where proposals were received beyond the due dates. Yet another main contention of the learned counsels is that, having obtained approval from the Tamil Nadu Nurses and Midwives Council which is limited only for the academic year 2007-2008, if the petitioners do not start the programmes in the academic year 2007-2008, the said approval will lapse and they have to redo the entire exercise. It is further contended by the learned counsels that even if the petitioners start the course for the academic year 2007-2008 without approval from the respondent, it will be of no use since the course offered without recognition by the respondent will carry no merit outside the State of Tamil Nadu. The learned counsels for the petitioners have further contended that considering the fact that the petitioners have invested huge sums of money in setting up Nursing Colleges/Schools and have been paying the staff with the fond hope of getting recognition from the respondent and there is also an excellent employment potential for nurses in India and abroad as well, the writ petitions may be allowed by quashing the respective impugned orders which have been passed on account of non-application of mind and without proper consideration of material aspects of the matter and by directing the respondent to inspect the Nursing Colleges/Schools set up by the petitioners and to grant its recognition from the academic year 2007-2008. Finally, it is contended by the learned counsels for the petitioners that the last date for admission for any medical course is 30th September of every year.

7. Mr. V.S.R. Krishna, learned counsel appearing for the respondent has contended that when the respondent has published in prominent newspapers across the country, the calendar of events and schedules as regards proposals for opening of Nursing Colleges and Schools, the impugned orders which state that the petitioners' proposals cannot be considered since the last date for receipt of complete proposals has expired, cannot be set aside, when admittedly, the petitioners have not submitted their complete proposals within the prescribed period i.e. 31.01.2007 which was subsequently extended to 16.02.2007. The reason assigned by the learned counsel for the respondent for following the schedule of events and calendar prescribed is that, it invariably takes about four months for completing the inspection process and in almost all the cases, several deficiencies are found out and the institutions concerned are given an opportunity to rectify those deficiencies enabling the respondent to conduct a re-inspection. One another important reason cited by the counsel for the respondent for insisting upon the need to keep up the time schedule is that there will not be any room for any allegation of arbitrariness / favoritism / discrimination against the respondent. It is further contended by the learned counsel for the respondent that as against the last date of 31.01.2007 for receipt of complete proposals by the respondent, the petitioners have obtained No Objection/Essentiality Certificate from the State Government and also recognition from the Tamil Nadu Nurses and Midwives Council well after the said cut-off date and as such, the petitioners are estopped from challenging the respective impugned orders on the ground that the recognition granted by the Tamil Nadu Nurses and Midwives Council is only for the academic year 2007-2008 and if the respondent's recognition is not granted for the academic year 2007-2008, they will be required to redo the entire exercise of getting recognition from the Tamil Nadu Nurses and Midwives Council.

8. While contending that the respondent has been scrupulously adhering to the schedules and calendar of events and rebutting the contention made by the learned counsels for the petitioners that the respondent has relaxed the norms on many an occasion, the learned counsel for the respondent has contended that proposals of hundreds of colleges have been rejected on the ground that they have submitted their proposals after the due date and accommodating the petitioners would only result in opening of floodgates of litigation. Assailing the contention of the learned counsels for the petitioners that the respondent has not extended the last date for receipt of proposal despite request made by the State Government, the learned counsel for the respondent has contended that the respondent has sent a categorical reply dated 16.08.2007 stating that the last date has already been extended to 16.02.2007 and that there are already 75 Colleges and 136 Schools of Nursing in the State and as such, there will not be acute shortage of nurses in the State and even if the respondent grants recognition immediately, the shortage of nurses could not be met immediately since the course of B.Sc. Nursing is of four years duration. Lastly, the learned counsel for the respondent has contended that the role of the respondent is to regulate the nursing profession in the whole of India and approval to Nursing Schools and Colleges will be granted by the respondent only upon making inspection and that too, only after receipt of complete proposals including the No Objection Certificate and Essentiality Certificate submitted within the time-frame.

9. With regard to his contention that the cut off date stipulated by the respondent has to be scrupulously followed, the learned counsel for the respondent has relied on: i. a judgment of the Supreme Court reported in 1996 VII AD S.C. 679 in the matter of U.G.C. vs. Sadhana Chaudhary & Others and the relevant para reads as under: (para 20) "We find considerable force in the aforesaid submission of Shri Banerjee. It is settled law that the choice of a date as a basis for classification cannot always be doubted as arbitrary even if no particular reason is forthcoming for the choice unless it is shown to be capricious or whimsical in the circumstances. When it is seen that a line or a point, there must be and there is no mathematical or logical way of fixing it precisely, the decision of the legislature or its delegatee must be accepted unless it can be said that it is very wide of the reasonable mark. . . . In the present case, the date, December 31, 1993, as fixed by notification dated June 21, 1995, in the matter of grant of exemption from the eligibility test for appointment on the post of lecturer has a reasonable basis keeping in view the time taken in submitting the Ph.D. Thesis or obtaining M.Phil. degree by candidates who had undertaken the study for Ph.D. or M.Phil. degree prior to the issuance of the 1991 Regulations and the date, December 31, 1993, cannot be held to be capricious or whimsical or wide of the reasonable mark. The High Court of Punjab and Haryana has proceeded on the basis that the cut off date for the purpose of granting exemption from eligibility test should have nexus with the date of the advertisement inviting applications for appointment on the post of lecturers. The High Court was in error in taking this view. The exemption from eligibility test that has been granted under paragraph 5 of the advertisement dated January 23, 1995 is relatable to the introduction of the requirement of eligibility test in the 1991 Regulations. The object underlying the grant of exemption is to mitigate the resultant hardship to candidates who had registered for Ph.D. Degree or had joined the course for M.Phil. degree on the basis of the minimum qualifications prescribed under the 1982 Regulations. . . " ii. another judgment of the Supreme Court reported in (2005) 6 SCC 754 in the case of State of Punjab and others vs. Amar Nath Goyal and others (para 27) "Even by OM dated 19.10.1993, all that happened was that a portion of the dearness allowance linked to Average Consumer Price Index of 729.91 obtaining as on 01.03.1988 (i.e. 20 of the basic pay) was treated as dearness pay. This would count only for reckoning the emoluments for the purpose of calculating retirement-cum-death gratuity under the applicable rules and for no other purpose. This change was brought into effect from 16.09.1993." iii. yet another judgment of the Supreme Court reported in (2002) 9 SCC 541 in the case of Y. Chandrahas Reddy vs. Government of India and another.

10. The aspects that: (a) the cut off date for receipt of complete proposals by the respondent for starting Nursing Schools and Nursing Colleges is 31.01.2007;

(b) the petitioners have belatedly submitted their proposals to the respondent; (c) the petitioners have obtained No Objection Certificate from the State Government and recognition from the Tamil Nadu and Nurses and Midwives Council after the cut-off date for receipt of receipt of complete proposals; (d) the State Government has written to the respondent to extend the last date for receipt of complete proposals and in response, the respondent has also written to the State Government explaining that it is not possible to extend the cut-off date any further and

(e) the respondent has not caused inspection on the petitioner institutions on the ground that it has received complete proposals from the petitioners after the cut-off date are not disputed.

11. Before proceeding to deal with the matter, some useful reference could be made to Sections 10 and 13 of the Indian Nursing Council Act, 1947 and also Regulation 63 of the Indian Nursing Council Regulations which read as follows: Section 10 - Recognition of qualifications: 1 For the purpose of this Act, the qualifications included in Part I of the Schedule shall be recognised qualifications, and the qualifications included in Part II of the Schedule shall be recognised higher qualifications. 2 Any authority within the States which, being recognised by the State Government in consultation with State Council, if any, for the purpose of granting any qualification, grants, a qualification in general nursing, midwifery, auxiliary nursing-midwifery, health visiting or public health nursing, not included in the Schedule may apply to the Council to have such qualification recognised; and the Council may declare that such qualification, or such qualification only when granted after a specified date, shall be a recognised qualification for the purposes of this Act. 3 The Council may enter into negotiations with any authority in any territory of India to which this Act does not extend or foreign country which by the law of such territory or country is entrusted with the maintenance of a register of nurses, midwives or health visitors, for the setting of a scheme of reciprocity for the recognition of qualifications and in pursuance of any such scheme the Council May declare that a qualification granted by any authority in any such territory or country, or such qualification only granted after a specified date, shall be a recognised qualification for the purposes of this Act: Provided that no declaration shall be made under this sub-section in respect of any qualification unless by the Law and Practice of the foreign country in which the qualification is granted persons domiciled or originating in India and holding qualifications recognised under this Act are permitted to enter and practise the nursing profession in that country: Provided further that:

i any reciprocal arrangements subsisting at the date of the commencement of this Act between a State Council and any authority outside India for the recognition of qualifications shall, unless the Council decides otherwise, continue in force and ii any qualification granted by an authority in a territory of India to wh ich this Act did not extend at the date of its commencement and recognised on the said date by the State Council of the State to which this Act then extended, shall continue to be a recognised qualification for the purpose of registration in that State. 4 The provision of sub-sections (2) and (3) and of Sections 14 and 15 shall apply mutatis mutandis to the declaration by the Council of a qualification granted in respect of post-certificate nursing training as recognised higher qualification. Section 13 - Inspections:

1 The Executive Committee may appoint such number of inspectors whether from among members of the Council or otherwise, as it deems necessary to inspect any institution recognised as a training institution, and to attend examinations held for the purpose of granting any recognised qualification or recognised higher qualification. 2 Inspectors appointed under this Section shall report to the Executive Committee on the suitability of the institution for the purposes of training and on the adequacy of the training therein, or as the case may be on the sufficiency of the examinations. 3 The Executive Committee shall forward a copy of such report to the authority or institution concerned, and shall also forward copies with the remarks, if any, of the authority or institution concerned thereon, to the Central Government and to the State Government and State Council of the State in which the authority or institution is situated. Regulation 63

The inspection of examinations under Section 13(1) of the Indian Nursing Council Act shall be carried out in accordance with the following regulations:- 1 The Executive Committee of the Council shall appoint not less than two inspectors, whether from among members of the Council or otherwise, to attend at qualifying and other examinations and to inspect Training Institutions. 2 Any inspector shall have taught previously students in one or other of the subjects of the final examination or in cognate subjects for five years and shall have acted as examiner in such subjects. 3. . . .

4 An inspector shall on receipt of a formal Commission in writing from the President under the Seal of the Council, attend and examinations held for the purpose of granting any recognised qualification or recognised higher qualification and inspect such recognised training institutions, as the President or the Executive Committee may direct, and thereafter shall report to the Executive Committee on the sufficiency of the examinations or on the suitability of the institutions for the purposes of training and on the adequacy of the training therein. 5 It shall be the duty of the inspector:- a . . .

b To attend personally every examination which he/she is required to inspect, but not to interfere with the conduct thereof. c To report to the Executive Committee his/her opinion as to the sufficiency of each examination and the suitability of each institution inspected by him/her. d To report relevant particulars about the questions asked in the written, oral and practical parts of each examination inspected by him/her, the equipment provided for clinical and practical examinations, the arrangements made for invigilation, the method and scales of marking the standard of knowledge shown by successful candidates, and generally all such details as may be required for adjudicating on the scope and character of the examination. e To report on the adequacy of the teaching programme in the institutions inspected with particular reference to class and demonstration rooms, teaching equipment, number of nursing tutors, facilities for practical experience in the hospital and public health field, supervision of practical work during day and night, hours of duty, arrangements for living and recreation, and the student health service. f . . .

g To report on the extent to which the recommendations of the Council have been carried out in the case of each examination and institution inspected by him/her and also to what extent the resolutions of the Council on nursing education have been given effect to in the education of the students.

12. In this context, it would also be relevant to refer to the various Government Orders by which the petitioners were accorded permission to start Nursing College/School with certain conditions such as that: (i) the petitioners should obtain recognition / suitability / affiliation from the Tamil Nadu Nurses and Midwives Council, Chennai, Indian Nursing Council, New Delhi and Dr. MGR Medical University, Chennai; (ii) admission should be made as per the rules fixed by the Government from time to time, (iii) tuition fees including Special Fees should be collected at the same rates as prescribed by the Government from time to time and the Management should give separate undertaking stating that no Capitation Fee or any other fund in the name of building fund, etc. will be collected from the students seeking admission, etc.

13. I have given careful thought and consideration to the arguments advanced by the learned counsel on either side, the judgments relied on by the learned counsel for the respondent and the relevant provisions of the Indian Nursing Council Act and Regulations and also the respective Government Orders according permission to the petitioner institutions to start Colleges/Schools of Nursing.

14. At the threshold, I am of the view that the judgments relied on by the learned counsel for the respondent in support of his contention on the aspect of scrupulously following the cut-off date cannot be made applicable to the facts of the case on hand as they fall under an altogether different footing and as such, the same are brushed aside except the decision in Sadhana Chaudhary case where there must be and there is no mathematical or logical way of fixing it precisely, the decision of the legislature or its delegatee must be accepted unless it can be said that it is very wide of the reasonable mark. In the instant case, there is no specific provision in respect of cut-off to be adhered to scrupulously either in the Indian Nursing Council Act or Regulations and at the best, it is only a matter of procedural aspect followed by the respondent. Thus, the procedural aspect is a matter well within the ambit and purview of the appropriate authority to decide accordingly, taking note of the logical reasons and nexus in the process of approval of the petitioners' proposals to start Colleges/Schools of Nursing.

15. From a perusal of the records, it is seen that the State Government, considering the pendency of proposals to start Nursing Colleges/Schools by various institutions and to meet the acute shortage of nursing personnel in Tamil Nadu, has addressed to the respondent for extension of cut off date for receipt of complete proposals and the relevant portion of the said letter reads as under: "I am directed to invite attention to the reference cited and to state that this Government have issued orders permitting the Trust/Society to open new Schools and Colleges of Nursing for the academic year 2007-2008, to increase the manpower in the field of Nursing to meet the shortage of nursing personnel in Tamil Nadu. Nearly 30 proposals seeking Government permission to start Nursing Schools/Colleges in Tamil Nadu are under process. The last date of submission of new proposal from the Institute is 31 January, 2007. I am to request you to extend the last date for submission of proposal to INC, New Delhi to start School and College of Nursing for the academic years 2007-2008, as number of requests made by the Trusts in this regard are pending in Government at various levels. The decision of the Council may be intimated at the earliest." Thus, the interest evinced by the State Government to make good the paucity of nurses in Tamil Nadu cannot be ignored, bearing in mind the larger perspective and it certainly requires some favourable consideration by the respondent. Whereas, the respondent, in its reply to the State Government has stated that the latter has also not taken adequate measures to issue the Essentiality Certificates at the appropriate time, though it was duly cautioned and informed by the Council in its letter dated 18.09.2006. It is also stated in the reply that the delay may have occurred due to the completion of necessary formalities by the State Government but by the same logic it is not in public interest to do away with the requisite guidelines issued by Indian Nursing Council.

16. From the above, it can be easily seen that according to the respondent, the delay is attributable to the action of the State Government and the cumbersome formalities undertaken by the respondent. But, the only question that requires to be answered now is that whether this kind of delay can be put against the interest of the petitioner institutes which are languishing to provide education in the field of Nursing in order to meet the paucity of nurses in the State. The mechanism devised by the respondent in granting recognition to the Nursing Colleges/Schools is undoubtedly a constituting process. However, the respondent cannot be a body without having such a power and mechanism to give proper consideration to the proposals and cause inspection on the petitioner institutes which can be done even within the available time-frame also, taking note of the overall interest of the State and the requirement of personnel in the field of nursing. It is to be noted that in its reply to the State Government, the respondent has also accepted that it would, on its part, be more willing to assist the State Government in filling up the gap of nurses, if asked for. Accordingly, it is all the more important that this assurance be implemented in both letter and spirit. As such, the respondent cannot rest contended by making good the shortage of nurses alone. It is also equally necessary that the local needs of the State should be met. When institutions such as the petitioners come forward with proposals to provide education in the field of nursing and that too, after investing huge sums of money in the creation of required infrastructure and payment of salary to staff members, it is the duty of the respondent to consider such proposals, bearing in mind, the larger public interest involved. That apart, in view of the undisputed fact that besides the local market, the Indian nurses have a great demand in foreign countries also, in my considered view, equity requires that the respondent has to devise certain effective mechanism in considering the proposals within the available time-frame by conducting inspection and granting recognition. Of course, now, the academic year has already begun; yet, time is available to the respondent to consider the case of the petitioners. Though this Court is not inclined to quash the impugned orders, even then, it is a matter of fact that, if there is a proper consideration of proposals, the last date for admission would be 30th September of every academic year. If really the mechanism is intended to consider the proposals with proper vision and mission, it may not be out of place for the respondent to do the same even within the available time. However, the petitioners cannot claim consideration of their proposals by the respondent as a matter of right. As such, this Court feels that in the interest of the State and the nursing community in particular and also the claim of the petitioners that the time-frame prescribed by the respondent is only procedural and not statutory in nature, the proposals of the petitioner institutes may be considered taking particular note of the fact that the recognition granted by the Tamil Nadu Nurses and Midwives Council to the petitioner institutes is only for the academic year 2007-2008 and the benefit has to be availed by the petitioners during this academic year itself.

17. Accordingly, without traversing on the vires or otherwise of the impugned orders, the respondent is directed to (i) consider the case of the petitioners within its powers / feasibility and pass orders, particularly in the light of the provisions of the Act, Regulations and the permission accorded by the State Government in this regard, as otherwise, the petitioners will be required to redo the entire exercise of applying for recognition and also the recognition granted by the Tamil Nadu Nurses and Midwives Council will lapse and (ii) on any event, not return the petitioners' proposals rejected and instead, process the same. With the above directions, this batch of writ petitions is disposed of. No costs. Consequently, connected Miscellaneous Petitions are closed. 03.09.2007

cad

Index:Yes/No

Internet:Yes/No

Note to Office: Issue order copy on 04.09.2007

To

The Secretary

Indian Nursing Council

Combined Councils Building

Kotla Road, Temple Lane

New Delhi  100 002

V. DHANAPALAN, J.

cad

Pre-delivery common order in

W.P. Nos.25932, 25933, 25936,

25937, 26808, 26857 &

27174 of 2007

03.09.2007


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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