Late Madan Gopal Chourasiya Smrati Samiti vs The Indian Nursing Council

Rajendra Menon, J.—Challenging the orders Annexures P-1 and P-2 passed by the Secretary, Indian Nursing Council, New Delhi refusing permission to the petitioner institute in the matter of conducting a course in B.Sc./M.Sc. Nursing, petitioner institute has filed this writ petition. Petitioner claims to be a registered society with registration certificate dated 14/01/10 Annexure P-3. It has established a nursing school in the district of Chhatarpur namely the "Prayas School of Nursing Garhi Malahara, Distt. Chhatarpur (M.P.)". For the purpose of seeking permission and approval to conduct the course, it is seen, that in accordance with the statutory requirement as contained in the Indian Nursing Council Act, 1947 and the "Guidelines for establishment of New General Nursing and Midwifery School of Nursing", petitioner society submitted an appropriate application. An inspection of the institute took place on 14-15th June, 2011 and a report was submitted indicating seven deficiencies as are indicated in the communication made in this regard vide Annexure P-5 on 26/08/11. The deficiencies as are pointed out are detailed by the petitioner in para 5.4. of the writ petition.

After communication was made in this regard, it is stated that petitioner carried out the necessary work for removal of the deficiency and after depositing the requisite Re-inspection fee of Rs. 10,000/- vide Annexure P-6 on 17/01/12 sought for Re-inspection of the institute. Accordingly, the re-inspection took place on 2-3rd April, 2012 and a report was submitted pointing out certain deficiencies again. The report in this regard is Annexure P-7 and, thereafter, by the impugned order, the claim of the petitioner institute for grant of recognition having been rejected, this writ petition is filed.

Shri Deepak Awasthy, learned counsel for the petitioner invited our attention to the communication made, impugned in this writ petition wherein the deficiencies are pointed out and argued that in the inspection conducted and the final action taken, the approval is rejected to the petitioner on the basis of the seven deficiencies as are contained in the communication Annexure P-2 which reads as under:-

Deficiencies:-

Teaching faculty inadequate:-

a) Mr. Asha Nand is on leave and hence will not be considered for your institution.

b) Except Principal all are the male faculty. It is observed that there is no female faculty to supervise midwifery component.

c) Principal is qualified from the Bhoj Open University which is not recognised by INC.

Clinical facilities inadequate:-

a) District Hospital & Dr. VP is already affiliated to many nursing institutions.

b) 1:3 student patient ratio not available.

c) The permission letter does not look genuine of Mukhya Chikitsa and Swasthya Adhikari Chhatarpur, Madhya Pradesh.

The rental agreement not available.

Shri Deepak Awasthy referred to each of the deficiencies as are indicated hereinabove and argued that deficiency no. 1 a) with regard to leave of Mr. Asha Nand is not correct. It was emphasized by him that he was only on leave at the time of inspection but he has joined subsequently and is regularly available in the institution.

As far as deficiency no. 1 b) is concerned, it is submitted by him that there is no such requirement of having a female faculty to supervise the midwifery component of the institute. It is argued that as there is no requirement as such in this regard under the guidelines and, therefore, on this count, the approval cannot be rejected.

As far as deficiency no. 2 a) and 2 b) are concerned, learned counsel for the petitioner invited our attention to certain benefits granted to one Shri Swami Vivekanand College of Nursing, Choubey Colony, Chhatarpur (M.P.) vide Annexure P-10 and to S.B. School of Nursing, village-Mubasi, Post-Chhatarpur vide Annexure P-11 on 29/08/12 and argued that inspite of similar deficiency being available in these two institutes, they are granted approval and there is a discrimination in this regard as far as the petitioner is concerned.

As far as deficiency no. 1 c) is concerned, learned counsel referred to certain documents available on record particularly certain certificates and communications made with regard to recognizing the courses of study undertaken by the Bhoj Open University to say that students who have passed the qualifying examination from the Bhoj University are being admitted to the B.Sc. Nursing course and they are also being granted provisional registration and, therefore, it is stated that the objection in this regard with regard to qualification of the Principal is unsustainable as the degree granted by the Bhoj University is recognized by the Indian Nursing Council for the purpose of granting provisional registration by the Mahakoushal Nursing Council and, therefore, on this count, petitioner''s claim cannot be rejected.

Finally, with regard to objection as contained in Clause 2 c), it is argued that in the matter of genuineness of the document referred to therein, no enquiry has been conducted and in a whimsical manner, petitioner''s claim is rejected. Accordingly, learned counsel for the petitioner submits that as the approval to the petitioner institute is refused on improper consideration contrary to law, interference be made and the petition allowed.

Respondent represented by Shri Mohan Sausarkar have filed a counter affidavit of Shri K.S. Bharati, Joint Secretary in the Indian Nursing Council, New Delhi and it is pointed out by Shri Sausarkar that the deficiencies pointed out are statutory in nature and, therefore, exercising the powers conferred under the Indian Nursing Council Act, 1947, the council has taken action in the matter and as action is taken in accordance with law, it is stated that no interference be made.

Shri Mohan Sausarkar invites out attention to the law laid down by the Supreme Court in the case of Medical Council of India Vs. Sarang and Others, to say that in such matters when the expert body has already conducted its inspection and has submitted a report pointing out various deficiencies in the institute in question, interference into the matter by this Court exercising its limited jurisdiction in a petition under Article 226 and 227 of the Constitution is not called for. Accordingly, it is argued that the action taken be upheld and the petition dismissed.

We have heard learned counsel for the parties at length and perused the record. The factual assertion in the matter of conducting the inspection initially pointing out deficiencies at the first inspection, and, thereafter, seeking re-inspection in the matter is not in dispute. Even after re-inspection which was conducted on 2nd and 3rd April, 2012 as is indicated hereinabove, seven deficiencies have been pointed out.

During the course of hearing, on behalf of the petitioner, no statutory rule or regulation being violated with regard to procedure conducted for inspection or in the matter of granting approval is pointed out.

The only contention of the learned counsel for the petitioner is that the deficiencies do not exist, that being so, the question that arises for consideration in this writ petition is as to whether by conducting an enquiry with regard to merits of the deficiencies as pointed out by the council, interference can be made by this Court or a finding can be recorded that the deficiencies as pointed out are non-existent. It is an arbitrary exercise of power by the council and, therefore, action liable to be quashed.

We have gone through the inspection reports available on record and find that certain deficiencies as indicated in the impugned order Annexure P-2 at page 22 have been pointed out by the council. Learned counsel for the petitioner at the time of hearing explained the position with reference to each of the deficiencies and tried to emphasize that the deficiencies are not existing.

One of the deficiency pointed out is no. 1 c). It is indicated in this regard that the Principal appointed for the institute in question is not qualified as per the guidelines issued by the Indian Nursing Council and the qualification acquired by the Principal from the Bhoj Open University is not an approved qualification as this university is not recognized by the Indian Nursing Council. Petitioner does not dispute this proposition but says that vide communication Annexures P-8 and P-9, certain qualifications acquired by students from the M.P. Bhoj Open University, Bhopal had been recognized and, therefore, the contention is not correct.

If the documents Annexures P-8 and P-9 relied upon be taken note of, it would be seen that the communication Annexure P-8 is made by the Secretary of the Council respondent on 25th September, 2009 to the Registrar of Mahakoshal Nursing Registration Council, Bhopal indicating that a student who has passed the B.Sc. Nursing Course from the institute affiliated to the Bhoj Open University i.e. the Post Basic course can work within the State of M.P. and for the purpose of provisional registration, the degree obtained from the Bhoj University is recognized. This document in no way suggests that for appointment as a ''Principal'' of Nursing College, the degree or certificate granted by the Bhoj Open University is recognized. This document does not help the petitioner.

Similarly, Annexure P-9 is another communication in the matter of registration of students in the State of M.P. for the purpose of working as a Nurse. This document also no way says that a person to be appointed as a ''Principal'' in the Nursing College can be said to be qualified for such appointment on the basis of the qualification acquired by him from the Bhoj Open University.

For the purpose of maintaining standard of education, the Indian Nursing Council is the sole authority authorized under law namely the Indian Nursing Council Act, 1947 to lay down and prescribe the qualification and conditions to be fulfilled by the faculty members who are to be appointed in the said institute.

Under the guidelines laid down in this regard as are filed by the respondent along with Annexure R-1, it is clearly indicated that the Principal to be appointed to such institute should have passed the M.Sc. Nursing Course, should have three years of teaching experience or a B.Sc. Nursing (Basic)/Post Basic course with 5 years of teaching experience. Thereafter, a list of institutes recognized by the council for acquiring this qualification is also notified and in the said list, the Bhoj Open University is not included. That being so, when an expert statutory authority has laid down certain requirement for appointment of a Principal to an institute and when it is found that the institute does not fulfil the said qualification, this Court cannot interfere into the matter and issue any direction which runs contrary to the requirement of the statute.

That being so, we see no reason to uphold the justification given by Shri Deepak Awasthy in the matter of qualification of the ''Principal''. Similarly, with regard to qualification of 1 b), it is indicated by the council that there has to be some female faculty to supervise the midwifery component. This is an activity connected with certain diseases peculiar to women and if for supervising such a requirement, the council wants that a female faculty is required, we see no reason to hold such a decision to be arbitrary.

As far as conditions 2 a) and b) are concerned, it is clear that these conditions are violated and in the matter of affiliation of the institute to a District Hospital, it is clear that the Hospital is overburdened and the inspecting authorities found that affiliation to such hospitals will not be congenial for the purpose of imparting education. If a mistake has been committed in the matter of granting recognition with respect to some other institute as is pointed out by learned counsel by referring to Annexures P-10 and P-11, we cannot perpetuate this illegality.

If an error has been committed by council in this regard and if an approval is granted to any institute contrary to the requirement of the statutory provisions, respondent council can correct the said mistake if pointed out but on such ground that some benefit has been granted incorrectly to some other institute, petitioner cannot claim parity on the basis of some negative equality.

Accordingly, on such consideration, we see no reason to interfere into the matter. In view of the deficiencies pointed out by the Nursing council, we see no reason to take a different view from the one taken by the council.

Keeping in view the aforesaid, no case is made out for interference into the matter. Grant of recognition for starting a nursing institute is governed by certain statutory rules and regulations and when the said statutory provisions are not applied with by the institute as is evident from the facts narrated hereinabove, no interference can be made by this Court and no order for granting approval/recognition can be issued by this Court once it is found that the institute do not fulfil the norms laid down by the Indian Nursing Council.

Accordingly, finding no case made out for interference, this petition is dismissed with liberty to the petitioner to make good the defect and, thereafter, seek for approval/recognition afresh in accordance with law. With the aforesaid, finding no case made out for interference, this petition is dismissed.