Vikash Choudhary and Others vs Rajasthan University of Heath Science and Others

Kanwaljit Singh Ahluwalia, J.—The present writ petition has been filed under Article 226 of the Constitution of India by fourteen students of the respondent No. 2 Mahatma Gandhi General Nursing College & School, praying that a direction be issued to the University to regularize their admission and permit them to fill application forms for appearing in annual examination of B.Sc. Nursing Part-I.

It is pleaded in the present petition that the petitioners took admission in B.Sc. Nursing Course run by Mahatma Gandhi General Nursing College & School, the respondent No. 2. It is further pleaded that the said nursing college is affiliated with the respondent No. 1 Rajasthan University of Health Science. It is averred that the petitioners were given admission in July to continue with their studies for academic session 2014-15. The petitioners had deposited the fee. The petitioners have pleaded that the petitioners took admission having satisfied themselves that the respondent No. 2 college is recognized institute and is affiliated with the respondent No. 1 University. It is further averred that at the end of session, the University had announced the schedule of annual examination and the petitioners applied online to appear in the examination and as per the schedule, petitioners had to submit the application form without late fee between 29.9.2015 to 6.10.2015 and with late fee from 7.10.2015 to 9.10.2015 and with double late fee from 10.10.2015 to 12.10.2015. The case of the petitioners is that they learnt that their application forms have not been accepted by the respondent No. 1 University and the University has deprived them of a precious academic year by not regularizing their admission.

This Court on 14.10.2015 while considering the application for interim relief had passed the following order:--

"On 6.10.2015, on the request made by the learned counsel for the petitioner, the case was adjourned for two weeks. Today, an application bearing No. 12930/2015 is listed. In the said application, prayer has been made that the respondent University may be directed to accept the soft as well as the hard copy of the examination forms of the petitioners with normal examination fee in order to enable them to appear in the examination of B.Sc. Nursing. A further prayer has been made that University be directed to issue enrollment number to the petitioner (students).

Mr. Saurabh Saraswat, counsel for the respondent University has contended that the admission made by the respondent college is irregular. Learned counsel further contended that the college had resorted to admission without following the procedure prescribed by the University for granting admission to nursing college.

I have heard the learned counsel for the parties.

Commercial institution for sake of profits cannot compromise academic excellence, especially in the stream of Nursing. A wrong nurse unable to record blood pressure, take temperature or administer injection can play havoc with the health of the patients. A quack is bad for the system.

The University has to maintain purity of education, sanctity of the examination and has to oversee maintenance of the academic standards.

In the present case, students without appearing in the entrance examination, without undergoing process of counseling, dehors of merit and the Regulations of the University, were granted admission by the respondent college. Therefore, the University is well within its rights not to allow students to appear in the examination whose admission was not made under the aegis of the University. Hence, the application for interim relief is declined. Nothing said herein shall be construed as final expression on the merits of the case, as only application for interim relief has been decided.

The main case shall be taken up on the date already fixed."

Mr. Saurabh Saraswat, the learned counsel appearing the respondent No. 1 University, has submitted that the day on which the respondent No. 2 college gave admission to the students, the said college respondent No. 2 was banned by the State Government to grant admission to the students. It is further submitted that the respondent No. 1 University on 84th meeting of Academic Council held on 1.12.2014 had taken a decision that the respondent No. 2 college shall not be permitted to give admission to the students in B.Sc. Nursing Course for the session 2014-15. It is further submitted that on the date when the respondent No. 2 college gave admission to the students, it was not recognized by the Indian Nursing Council. The respondent No. 1 University had further taken a decision that any institution which had obtained recognition from Indian Nursing Council after 30.9.2014, will not be considered eligible for grant of affiliation for academic session 2014-15. It is further contended that the recognition given by the Indian Nursing Council later, was also dependent upon the grant of approval by the respondent No. 1, University. The learned counsel for the respondent No. 1 University has further submitted that the students had not appeared in the entrance examination and they had not participated in the counselling undertaken by the University, therefore, the students were granted admission by the respondent No. 2 college directly, at its own, dehors of the merit. The learned counsel further submitted that for achieving academic excellence and standards of education, it is imperative for the University to lay certain standards for making admission by holding entrance test and counselling, to ensure that admission is granted on the basis of merit alone.

Mr. Ashok Gaur, the learned Senior Counsel appearing for the petitioner-students has submitted that on 9.11.2015, the State Government has lifted the ban imposed upon the college and hence, the respondent No. 2 college can make the admissions.

Lifting of ban from 9.11.2015 onwards by the State Government neither shall operate nor can be construed with retrospective effect. The matter of fact remains that when the respondent No. 2 college made admission, there was complete ban imposed by the State Government upon the respondent No. 2 college. It is also undeniable fact that on the day the respondent No. 2 college gave admission, there was no recognition given by the Indian Nursing Council to the respondent No. 2 college for grant of admission. On the day when the respondent No. 2 college gave admission to the students, the respondent No. 1 University had also taken a decision that the respondent No. 2 college is not an approved institution and hence was not permitted to enroll the students.

In Shiv Shakti Education Society (Regd.) v. State of Punjab and Others, 2008 (1) SCT 691, a Division Bench of Punjab and Haryana High Court of which I was also member, had formulated following questions:

"15. Thus, following questions arise for consideration:

(i) Whether approval of the INC was required for making admissions?

(ii) Whether the University could decline affiliation after approval has been granted by the INC?

(iii) Whether the State Government or the State Nursing Council could allow admissions to be made for B.Sc Nursing Course in absence of there being approval by the INC or affiliation by the University?

(iv) Whether the petitioner was entitled to make admissions when the University had not granted affiliation and the State Nursing Council had declined to extend recognition?

(v) Whether added respondent Nos. 5 to 8 could have been allowed to make admissions?"

In Shiv Shakti''s case (supra) the question formulated above after taking into consideration the law laid by the Supreme Court were answered as under:--

"20. In the light of above legal position, we proceed to consider the questions formulated in para 15. Re:(i)

We have already referred to the provisions of the INC Act. The Preamble of the Act shows that the object of the Act was to establish a uniform standard of training. It provided for recognition of qualifications by institutes mentioned in the Schedule and also for making regulations for prescribing conditions for admission to courses of training. Such regulations have been statutorily framed and Regulations (Annexure R4/2) provide obtaining of No Objection/Essentiality Certificate from the State Government, assessing suitability of an institution by the Indian Nursing Council before the programme commences, grant of permission by the INC for starting the programme, approval of the State Nursing Council and the University. It further provides for admission of students only after approval by the State Nursing Council and the University.

It is obvious that no course can be commenced nor admissions can be granted without permission of the INC, approval of the State Nursing Council and the University and No Objection from the State Government.

In view of above, without permission of the INC, the course could not commence and admission could not be given. The INC has also taken the same stand and opposed the permission granted to added respondent Nos. 5 to 8. The petitioner having also not been given approval by the University and the Nursing Council, could not be allowed to make admissions.

The stand of the State Council and the State Government that admissions could be made pending approval by the INC, cannot be upheld. Once admissions are given, it may be inequitable to cancel the same. Approval of the INC could not be taken for granted. As per statutory regulations, approval of the INC was required before admissions were made. Grant of permission to added respondent Nos. 5 to 8 to make admissions cannot be held to be valid. To this extent, the stand taken by the petitioner, the INC and the University has to be upheld and stand of the State, the State Council and the added respondents has to be rejected. The judgment by a Single Bench of this Court in Mata Amrit Kaur Welare Trust (supra) cannot be held to be a good law, in view of statutory regulations and the judgments of the Hon''ble Supreme Court in Adhiyaman, Thirumuruga and Sant Dnyaneshwar (supra).

Question (i) is answered accordingly.

Re:(ii)

Stand of the petitioner and the INC is that the University was bound to grant affiliation after approval has been granted by the INC, while stand of the University is that grant of approval by the INC does not obviate the need for affiliation by it, which was an independent concept. It was submitted that the scheme of the NCTE Act considered by the Hon''ble Supreme Court in Sant Dnyaneshwar (supra) was different because of language of Section 14(6) of the NCTE Act, 1993. The parameters to be applied by the University could not only be as per the guidelines of the INC but also higher parameters. Inspection conducted by the INC was merely for the purpose of assessing suitability with regard to physical infrastructure, clinical facilities and teaching faculty and if approval of the University was formal, it would have been specifically so stated in the regulations.

The University being governed by a Central Act, was not under the control of the INC.

Both the stands -of the petitioner and the INC that affiliation by the University was mere formality and stand of the University that it could not be controlled by the INC, cannot be upheld. The INC Act was a special statute for nursing education. On the analogy of Sant Dnyaneshwar (supra), it can be held that field of nursing education was fully occupied by the Act of the Parliament. However, regulations do not say that the affiliation must follow the approval by the INC. In absence thereof, the University could make its own assessment and was not bound by the assessment of the INC. At the same time, the INC, to support its stand that affiliation by the University was a formality, must either frame a regulation to that effect or evolve a mechanism to deal with objections of the University in its inspection. There will be nothing wrong with a single window system being worked out by the INC, with INC working as a nodal agency and laying down mechanism to deal with any genuine objection of the University in a time bound manner. In fact, doing so is an obligation of the INC and failure to do so may create chaos by requiring educational institutions to remain without any proper forum against an unreasonable stand of a University in a given case.

We do not approve the stand of the University that INC cannot regulate the exercise of power by the University even by making a regulation or laying down a mechanism. We have already referred to the judgments of the Hon''ble Supreme Court laying down desirability of reconciling conflicting stands of statutory authorities. We have also referred to the desirability of single window system at par with the spirit of single window system for admissions, laid down in P.A. Inamdar. Mere permissibility of a higher standard being laid down by a University, as observed by the Hon''ble Supreme Court in S.V. Bratheep (supra) and observations in Bharathidasan (supra), not requiring permission from All India Institution for Technical Education does not exclude regulation by the Indian Nursing Council by laying down appropriate mechanism. The law laid down in a Single Bench judgment of this Court in Dr. Shyam lal Thapar Nursing Foundation (supra) will stand modified accordingly.

Accordingly, while we hold that the University could decline affiliation after approval has been granted by the INC, INC is not debarred from laying down appropriate mechanism for taking a final decision on the objections to the affiliation where INC approval has been given in a time bound manner. As held by the Hon''ble Supreme Court in Dental Council of India v. Subharti KKB Charitable Trust, court''s jurisdiction to interfere with the discretion of an expert body is limited, even though right to education is concomitant to the fundamental rights under Part III of the Constitution. Unless there are proper educational facilities, requirement of merit based education to compete in the global market cannot be met. Though, need for private institutions cannot be denied but such institutions could not be allowed to be run as shops and standards of education must be properly assessed. At the same time, the authorities have to exercise their regulatory powers in a fair and proper manner for the purpose for which such powers are conferred. Conferment of such power on regulatory bodies is coupled with duty to act fairly and expeditiously. The norms must be fulfilled but affiliation or other approval could not be refused or delayed by any extraneous consideration. Thus, though the views of the expert body like the University may not be interfered with lightly, a proper mechanism must be worked out by which decision of the University can be cross-checked by another expert body as per mechanism to be laid down by the INC. No doubt, this Court, in exercise of power of judicial review, can interfere in an appropriate case but there are inherent limitations in exercise of power of this Court, against discretion exercised by an expert body, as laid down by the Hon''ble Supreme Court in Subharti KKB Charitable Trust (supra). The relevant observations of the Hon''ble Supreme Court may be quoted herein for ready reference:

Hence, it is to be reiterated that law as it stands, Court''s jurisdiction to interfere with the discretion exercised by such expert''s body is limited even though right to education is concomitant to the fundamental rights enshrined in Part III of the Constitution. It is equally true that unless there are proper educational facilities in the society, it would be difficult to meet with the requirements of younger generation who have keen desire to acquire knowledge and education to compete in the global market. It is required to be accepted that for establishing educational institutions, government machinery or funds are neither sufficient nor adequate and the necessity of the private institutions cannot be denied. However, since ages our culture and civilization have recognised that education is one of the pious obligation of the Society to be discharged by the ''learned" and/or the State. It is for us to preserve that rich heritage of our culture of transcending the education continuously unpolluted. In the recent past, a notion has developed that it is a religious and charitable object to establish and administer educational institution. This Court in Unni Krishnan v. State of A.P. observed as under:

Education has never been commerce in this country. Making it one is opposed to the ethos, tradition and sensibilities of this nation. The argument to the contrary has an unholy ring to it. Imparting of education has never been treated as a trade or business in this country since time immemorial. It has been treated as a religious duty. It has been treated as a charitable activity. But never as trade or business.

At present, there is tremendous change in social values and environment. Some persons consider nothing wrong in commercialising education. Still however, private institutions cannot be permitted to have educational ''shops'' in the country. Therefore, there are statutory prohibitions for establishing and administering educational institution without prior permission or approval by the concerned authority. On occasions, the concerned authorities, for various reasons, fail to discharge their function in accordance with the statutory provisions, rules and regulations. In some cases, because of the zeal to establish such educational institution by persons having means to do so, approach the authorities, but because of red-tapism or for extraneous reasons, such permissions are not granted or are delayed. As against this, it has been pointed out that instead of charitable institutions, persons having means, considering the demands of the market rush for establishing technical educational institutions including medical college or dental college as a commercial venture with sole object of earning profits and/or for some other purpose. Such institutions fail to observe the norms prescribed under the Act or the Regulations and exploit the situation because of ever increasing demand for such institutions. In such cases, permission is refused by the authorities without there being any bias or extraneous considerations. It is, therefore, submitted that Courts normally should not interfere with a decision taken by the expert body such as Medical Council or Dental Council by straightway issuing mandamus directing the authority to grant approval or permission to establish such institution. Where the authority has refused approval, the institution may not be well equipped to impart education and may not have qualified teachers, staff or other infrastructure necessary for running the institution. If permission is straightway granted by the Court, society, education and utlimately, the students suffer.

Mr. Harish N. Salve, learned Solicitor General appearing for the appellant further contended that the MCI and DCI being the expert bodies having powers to supervise the qualifications or eligibility standards for admission and invigilation to prevent substandard entrance qualification in these courses, judicial review of the decision of these expert bodies is not excluded, but the Courts would be slow to interfere in the decision of such expert bodies. For this, he placed reliance on the decision of this Court in Krishna Priya Ganguly v. University of Lucknow wherein Court observed:

...whenever a writ petition is filed provisional admission should not be given as a matter of course on the petition being admitted unless the Court is fully satisfied that the petitioner has a cast-iron case which is bound to succeed or the error is so gross or apparent that no other conclusion is possible.

He also referred to a three Judge Bench decision of this Court in State of Maharashtra v. Vikas Sahebrao Roundale, wherein it was held that the students of unrecognised and unauthorised educational institutions could have not been permitted by the High Court on a writ petition being filed to appear in examination and to be accommodated in recognised institutions. The Court observed "slackening the standard and judicial fiat to control the mode of education and examining system are detrimental to the efficient management of the education."

Similarly in Guru Nanak Dev University v. Parminder Kr. Another three Judges Bench of this Court interfered with the interim order passed by the High Court to allow students to undergo internship course even without passing the MBBS examination. It was held that "the Courts should not embarrass academic authorities by themselves taking over their functions." In A.P. Christians Medical Educational Society v. Govt. of A.P. this Court observed that the Court cannot by its fiat direct the University to disobey the statute to which it owes its existence and the regulations made by the University itself as that would be destructive of the rule of law. 13. There cannot be an dispute that normally the Court should not interfere with the functioning of the educational institutions, particularly, expert bodies like the MCI or the DCI. Still however, the question is posed that if such bodies act arbitrary for some ulterior purpose, whether the Court has the power to set right such arbitrary exercise of power by such authorities. We find the answer to this question in the affirmative. We also agree with the learned Solicitor General that educational institutions should not be permitted to be commercialised for earning money, but at the same time, the Courts can do very little in this field as it is the function of the expert bodies, such as, Medical Council of India or the Dental Council of India. However, citizens would loose faith in such institutions if the allegations made in the appeal are repeatedly made with regard to the Inspection Reports and granting of approval by the Central Government. We leave this question for the Central Government to deal with appropriately as it is the function of the concerned authorities to plug the loopholes and see that in such matters nothing hanky panky happens.

Learned Counsel for the INC stated that the INC will consider the question whether it could act as a nodal agency and co-ordinate conflicting stands of the University or other authorities after INC is satisfied that an institute is having the necessary infrastructure. The University has declined to grant affiliation though the INC has given the approval. The University has given reasons for grant of affiliation vide Annexure P.5 dated 8.11.2006, Annexure P.6 dated 7.8.2007 and Annexure P.9 dated 8.11.2007. We do not find any ground to hold that the deficiencies pointed out do not exist. It will be open to the petitioner to apply afresh or to move the INC and the INC may consider the matter if any appropriate mechanism is evolved for such a purpose. If the University is not satisfied with the removal of deficiencies by the petitioner or INC is unable to redress the grievance of the petitioner, the petitioner will be at liberty to take its remedies in accordance with law."

In view of law laid in Shiv Shakti''s case (supra) this Court cannot interfere with the decision of the University which is an expert body, as no case for judicial scrutiny is made out.

There is need to highlight the following potion of the order dated 14.10.2015, passed in this case, which has been reproduced above

"Commercial institution for sake of profits cannot compromise academic excellence, especially in the stream of Nursing. A wrong nurse unable to record blood pressure, take temperature or administer injection can play havoc with the health of the patients. A quack is bad for the system.

The University has to maintain purity of education, sanctity of the examination and has to oversee maintenance of the academic standards.

In the present case, students without appearing in the entrance examination, without undergoing process of counseling, dehors of merit and the Regulations of the University, were granted admission by the respondent college. Therefore, the University is well within its rights not to allow students to appear in the examination whose admission was not made under the aegis of the University."

Mr. Ashok Gaur, the learned Senior Counsel with all eloquence, at his command has appealed to this court that for the fault on the part of the respondent No. 2 college, students should not be made to suffer. The circumstances in which the admissions were made are such that the respondent No. 2 college cannot be permitted to flout the directions given by the State Government and the respondent No. 1 University. For the sake of students, premium cannot be extended to the acts of omission and commission on the part of respondent No. 2 college. It is also admitted fact that the students who were granted admission by the respondent No. 2 college are from management quota.

For the advancement of the career of the students, academic standards cannot be compromised. However, students are permitted to sue the respondent No. 2 college for damages for granting them admission in spite of the contrary directions issued by the State Government and the University.

In the facts and circumstances of the case, I find no merit in the present writ petition and the same is hereby dismissed.