Nandini Mitra vs State Of West Bengal & Ors

Tapabrata Chakraborty, J

The present writ petition has been preferred challenging inter alia the inaction on the part of the West Bengal Nursing Council (in short, the said Council) to register the name of the petitioner and to issue the registration certificate in her favour.

Records reveal that by an order dated 18th March, 2019 the parties were directed to exchange their affidavits. Pursuant to such direction the respondent no. 5 and the petitioner have exchanged their affidavits.

Mr. Bari, learned advocate appearing for the petitioner submits that the petitioner appeared in the Joint Entrance Examination, 2012 (in short, JENPARH). Upon emerging to be successful in the same, she was called for counseling and she opted for Apollo Gleneagles Nursing College, Kolkata (hereinafter referred to as the said college). Upon availing admission in the B.Sc. Nursing course (in short, the said course), she completed Pt.-I, Pt.-II, and Pt.-III Examinations but surprisingly she was not being allowed to participate in the Pt.-IV Examination since she did not secure 50% marks in the Higher Secondary Examination and an order to that effect was issued on 5th March, 2016. Challenging the said order, the petitioner preferred a writ petition, being W.P. No.9580 (W) of 2016, which was disposed of on 20th May, 2016, setting aside the impugned order dated 5th March, 2016. Subsequent thereto, the petitioner applied for registration but such application was not accepted by the said Council and registration was denied.

According to Mr. Bari, since the order denying participation to the petitioner in the final examination of the said course has been set aside and as she had successfully completed the said course, her registration cannot be withheld again on the self-same ground that she did not secure 50% marks in the Higher Secondary Examination.

Mr. Bari submits that a similar issue came up for consideration in W.P. No. 1113 (W) of 2017 preferred by one Sonali Nandi against the West Bengal Nursing Council & Others. The said writ petition was dismissed observing inter alia that the Nursing Council is entitled to prescribe the requirements and conditions for enrolment of a nurse under the Bengal Nurses Act, 1934 (in short, the said Act). An appeal was preferred against the said judgment and the appeal was allowed and the said judgment was accepted by the Council, as would be explicit from the order passed by the Hon'ble Division Bench in the case of The West Bengal Nursing Council & Anr. Vs. Sudipa Rani Das & Ors. in F.M.A. No. 625 of 2017. A copy of the order passed in the said appeal, as produced, be kept on record.

Mr. Chatterjee, learned advocate appearing for the respondent no. 5 submits that the petitioner did not fulfil the eligibility criteria for admission to the said course and as such she cannot claim registration under the said Council. Such eligibility criteria had been specified in the JENPARH information brochure. In support of such contention, he has drawn the attention of this Court to the averments made in paragraphs 5(c) to 5(f) of the affidavit-in-opposition.

He argues that the judgment delivered in the case of Sonali Nandi (supra) is distinguishable on facts inasmuch as the appellant therein secured more than 50% marks as prescribed by JENPARH, however, the said candidate did not secure the pass marks in the theoretical paper in the subject of Chemistry. The petitioner herein has failed to obtain even 50% marks in Higher Secondary examination.

Indisputably, the petitioner passed the JENPARH Examination and availed admission and ultimately completed the said course successfully. The impugned order dated 5th March, 2016 denying permission to the petitioner to participate in the final examination of the said course on the ground that she did not secure 50% marks in the Higher Secondary Examination was set aside by this Court in an earlier writ petition being W.P.No.9580(W) of 2016 observing inter alia that the petitioner did not suppress any fact at the time of admission and that having granted admission, the authorities cannot prevent the petitioner from completing the course. The Council chose not to prefer any application seeking leave to prefer appeal and the said order attained finality. In view thereof, the respondent no.5 cannot deny registration to the petitioner on the self-same ground that she did not secure 50% marks in the Higher Secondary Examination.

In the case of Sonali Nandi (supra) the learned Single Judge was pleased to reject the writ petition observing inter alia that registration as a nurse lies with the Nursing Council and the said Council is entitled to prescribe the requirements and conditions for enrolment of a nurse under the said Act and the petitioner did not fulfil all the conditions so prescribed and the said Council was within its rights in refusing to register the petitioner as a nurse and the ground of rejection that the candidate did not fulfil the eligibility criteria was available to the Council in view of Section 18 of the said Act.

An appeal was preferred against the said judgment being M.A.T. No. 596 of 2017 and the same was allowed and the Council was directed to grant registration to the appellant upon payment of prescribed fees.

A perusal of the said judgment would reveal that upon discussing the provisions of Section 18 and Section 2(c) of the said Act it was observed that in the absence of any rules and regulations prescribing any further condition, the Hon'ble Appeal Court held that the said Council cannot deny registration when the candidate had successfully completed the nursing course.

In view thereof, this Court grants liberty to the petitioner to submit a representation to the respondent no.5 seeking registration together with the requisite fees within a period of two weeks.

In the event, the petitioner submits the representation along with the requisite fees, the respondent no.5 shall accept the same and grant registration and issue a certificate to that effect in favour of the petitioner within a period of two weeks thereafter.

With the aforesaid observations and directions, the writ petition is disposed of.

There shall, however, be no order as to costs.

Urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties upon compliance of all necessary formalities.