Jammu & Kashmir High Court
Baba Institute Of Nursing And ... vs State Of J&K And Others on 24 December, 2019
Author: Rajesh Bindal
Bench: Rajesh Bindal
Sr. No. 126
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
OWP No. 2508/2018 (O&M)
Reserved on: 12.12.2019
Pronounced on: 24.12.2019
Baba Institute of Nursing and Paramedical Sciences ...Petitioner(s)
Through:- Mr. Ankush Manhas, Advocate
v/s
State of J&K and others ...Respondent(s)
Through:- Mr. H. A. Siddiqui, Sr. AAG
Coram: HON'BLE MR. JUSTICE RAJESH BINDAL, JUDGE
ORDER
01. The Petitioner has approached this Court praying for extension of the No Objection Certificate already granted to him for conducting Para Medical Training courses. Further direction has been sought to the respondents to accept the registration/examination forms of the students studying in the petitioner‟s institute to enable them to take examination.
02. Learned counsel for the petitioner submitted that the petitioner institute was granted No Objection Certificate vide Government Order No. 129-IIME of 2010 dated 26.02.2010 for conducting Para Medical Training courses. His submissions is that the petitioner institute having been granted provisional No Objection Certificate, the same should be continued further to enable the students admitted by the institute to take their examination. The 2 OWP No.2508/2018 admissions were carried out in the year 2017. They have already undergone their training in the District Hospitals, for which even fee was also deposited. In case the permission is not granted, the students will suffer irreparable loss. The petitioner fulfills all the eligibility conditions. Whatever objections were raised by the J&K State Paramedical and Nursing Council (for short „the Paramedical Council‟), the same had been complied with.
03. On the other hand, leaned counsel for the respondents submitted that the present petition deserves to be dismissed on the sole ground of concealment of material facts from this court. It was submitted that the petitioner had already filed OWP No. 648/2016 in which there is specific order that the petitioner institute would be barred from admitting the students for fresh courses in case the deficiencies are not removed. The order was passed by this Court on 06.03.2017 but still thereafter the petitioner had admitting the students. The aforesaid order passed by this Court was concealed by the petitioner as the same does not find mention in the petition filed. It was further submitted that the facilities available in the petitioner institute were inspected by the team of Paramedical Council and the deficiencies were intimated to the petitioner vide letter dated 27.07.2017 (Annexure-R1). Inspection was again carried out and the deficiencies were intimated to the petitioner vide letter dated 22.09.2018. The same have not been taken care of by the petitioner. Even the aforesaid two communications have been concealed by the petitioner while filing the present writ petition. Submission is that once the petitioner institute does not have the requisite infrastructure required for imparting training for the Paramedical courses, the provisional No Objection Certificate cannot be extended further. The 3 OWP No.2508/2018 petitioner did not get the students so admitted registered with the State Paramedical Council, hence, they cannot be permitted to appear in any examination. It was further submitted that by concealing material facts, the petitioner may have arranged practical training for the students in District Hospitals and deposited the fee for the same but it will not come to his rescue once the admission itself is illegal.
04. Reference was made to condition No. 4 in the provisional No Objection Certificate granted to the petitioner wherein the procedure for carrying out admissions has been mentioned and the aforesaid communications further provide that the candidates will have to get themselves registered with the J&K State Medical Faculty within one month of the admission. Neither in the case in hand admissions have been made as per the procedure prescribed nor the registration has been done.
05. In response, learned counsel for the petitioner submitted that the order passed by this court in the earlier writ petition filed by the writ petitioner did not have any relevance to the case in hand as the same was for the earlier session. In terms of the aforesaid order, the petitioner had submitted the compliance report vide letter dated 11.04.2017. The copy thereof was sought to be produced in the court though has neither been annexed with the writ petition nor pleaded therein. The factum of receipt of the communications dated 27.07.2017 and 22.09.2018, is not denied. However, it was sought to be explained that no details or minutes prepared by the Inspection Committee in the form of report is forthcoming. It was further submitted that even now the institute can be inspected as the 4 OWP No.2508/2018 complete infrastructure is there. It is only for the purpose of taking care of the interest of the students, as otherwise, they will suffer.
06. Heard learned counsel for the parties and perused the paper book.
07. Primarily, there are two issues involved in the present petition, namely, the effect of concealment of material facts from this Court and secondly the issue sought to be raised on merits. Another ancillary issue that would arise is that, in the case there is concealment of material fact, should be petitioner be heard on merit.
REGARDING CONCEALMENTS OF FACTS
08. Taking first the issue regarding concealment of material fact from the Court, while filing the present petition.
09. Before dealing with the factual aspect in detail, I find it appropriate to refer to the consistent opinion by Hon‟ble the Supreme Court on the issue. A litigant approaching the court with unclean hands and misleading the court is not entitled to be heard on merits. It has been so opined by Hon‟ble the Supreme Court.
10. In Abhyudya Sanstha v. Union of India, (2011) 6 SCC 145, Hon‟ble the Supreme Court, while declining relief to the petitioners, who did not approach the court with clean hands, opined as under:
"16. In our view, the appellants deserve to be non suited because they have not approached the Court with clean hands. The plea of inadvertent mistake put forward by the learned senior counsel for the appellants and their submission that the 5 OWP No.2508/2018 Court may take lenient view and order regularisation of the admissions already made sounds attractive but does not merit acceptance. Each of the appellants consciously made a statement that it had been granted recognition by the NCTE, which necessarily implies that recognition was granted in terms of Section 14 of the Act read with Regulations 7 and 8 of the 2007 Regulations. Those managing the affairs of the appellants do not belong to the category of innocent, illiterate/uneducated persons, who are not conversant with the relevant statutory provisions and the court process. The very fact that each of the appellants had submitted application in terms of Regulation 7 and made itself available for inspection by the team constituted by WRC, Bhopal shows that they were fully aware of the fact that they can get recognition only after fulfilling the conditions specified in the Act and the Regulations and that WRC, Bhopal had not granted recognition to them. Notwithstanding this, they made bold statement that they had been granted recognition by the competent authority and thereby succeeded in persuading this Court to entertain the special leave petitions and pass interim orders. The minimum, which can be said about the appellants is that they have not approached the Court with clean hands and succeeded in polluting the stream of justice by making patently false statement. Therefore, they are not entitled to relief under Article 136 of the Constitution. This view finds support from plethora of precedents. In Hari Narain v. Badri Das AIR 1963 SC 1558, G. Narayanaswamy Reddy v. Govt. 6 OWP No.2508/2018 of Karnataka (1991) 3 SCC 261 and large number of other cases, this Court denied relief to the petitioner/appellant on the ground that he had not approached the Court with clean hands. In Hari Narain v. Badri Das (supra), the Court revoked the leave granted to the appellant and observed.
"It is of utmost importance that in making material statements and setting forth grounds in applications for special leave made under Article 136 of the Constitution, care must be taken not to make any statements which are inaccurate, untrue or misleading. In dealing with applications for special leave, the Court naturally takes statements of fact and grounds of fact contained in the petitions at their face value and it would be unfair to betray the confidence of the Court by making statements which are untrue and misleading. Thus, if at the hearing of the appeal the Supreme Court is satisfied that the material statements made by the appellant in his application for special leave are inaccurate and misleading, and the respondent is entitled to contend that the appellant may have obtained special leave from the Supreme Court on the strength of what he characterises as misrepresentations of facts contained in the petition for special leave, the Supreme Court may come to the conclusion that in such a case special leave granted to the appellant ought to be revoked."
In G. Narayanaswamy Reddy v. Govt. of Karnataka (supra), the Court noted that the appellant had concealed the fact that the award could not be made by the Land Acquisition Officer 7 OWP No.2508/2018 within the time prescribed under Section 11A of the Land Acquisition Act because of the stay order passed by the High Court and observed:
"........Curiously enough, there is no reference in the special leave petitions to any of the stay orders and we came to know about these orders only when the respondents appeared in response to the notice and filed their counter-affidavit. In our view, the said interim orders have a direct bearing on the question raised and the non-disclosure of the same certainly amounts to suppression of material facts. On this ground alone, the special leave petitions are liable to be rejected. It is well settled in law that the relief under Article 136 of the Constitution is discretionary and a petitioner who approaches this Court for such relief must come with frank and full disclosure of facts. If he fails to do so and suppresses material facts, his application is liable to be dismissed. We accordingly dismiss the special leave petitions."
In Dalip Singh v. State of U.P. (2010) 2 SCC 114, this Court noticed the progressive decline in the values of life and observed.
"For many centuries Indian society cherished two basic values of life i.e. "satya" (truth) and "ahinsa" (nonviolence). Mahavir, Gautam Buddha and Mahatma Gandhi guided the people to ingrain these values in their daily life. Truth constituted an integral part of the justice-delivery system which was in vogue in the pre-Independence era and the 8 OWP No.2508/2018 people used to feel proud to tell truth in the courts irrespective of the consequences. However, post-Independence period has seen drastic changes in our value system. The materialism has overshadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the court proceedings. In the last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final." (emphasis supplied)
11. In Moti Lal Songara v. Prem Prakash @ Pappu and another, (2013) 9 SCC 199, Hon'ble the Supreme Court, considering the issue regarding concealment of facts before the court, while observing that "court is not a laboratory where children come to play, opined as under:
"18. The second limb of the submission is whether in the obtaining factual matrix, the order passed by the High Court discharging the accused-respondent is justified in law. We have clearly stated that though the respondent was fully aware about the fact that charges had been framed against him by the learned 9 OWP No.2508/2018 trial Judge, yet he did not bring the same to the notice of the revisional court hearing the revision against the order taking cognizance. It is a clear case of suppression. It was within the special knowledge of the accused. Any one who takes recourse to method of suppression in a court of law, is, in actuality, playing fraud with the court, and the maxim supressio veri, expression faisi , i.e., suppression of the truth is equivalent to the expression of falsehood, gets attracted. We are compelled to say so as there has been a calculated concealment of the fact before the revisional court. It can be stated with certitude that the accused- respondent tried to gain advantage by such factual suppression. The fraudulent intention is writ large. In fact, he has shown his courage of ignorance and tried to play possum. The High Court, as we have seen, applied the principle "when infrastructure collapses, the superstructure is bound to collapse". However, as the order has been obtained by practising fraud and suppressing material fact before a court of law to gain advantage, the said order cannot be allowed to stand." (emphasis supplied)
12. Similar view has been expressed in Amar Singh v. Union of India and others, (2011) 7 SCC 69 and Kishore Samrite v. State of Uttar Pradesh and others, (2013) 2 SCC 398.
13. It was held in the judgments referred to above that one of the two cherished basic values by Indian society for centuries is "satya" (truth) and the same has been put under the carpet by the petitioner. Truth 10 OWP No.2508/2018 constituted an integral part of the justice-delivery system in the pre- Independence era, however, post-Independence period has seen drastic changes in our value system. The materialism has overshadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the court proceedings. In the last 40 years, the values have gone down and now a litigants can go to any extent to mislead the court. They have no respect for the truth. The principle has been evolved to meet the challenge posed by this new breed of litigants. Now it is well settled that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final. Suppression of material facts from the court of law, is actually playing fraud with the court. The maxim supressio veri, expression faisi, i.e. suppression of the truth is equivalent to the expression of falsehood, gets attracted.
14. Keeping in view the aforesaid principles of law laid down by Hon‟ble the Supreme Court any litigant who approaches the court with unclean hands is not entitled to be heard on merits.
15. Now coming to the facts of the case in hand. What is evident from the record is that the petitioner in fact is running the institute without proper facilities being available. The petitioner is not an illiterate. He mentions himself to be a doctor, means Phd. He is engaged in the profession of imparting education, hence, cannot be said to be ignorant of the fact that while filing petitions in a court complete disclosure of facts is required. Every time, apparently he approaches the court to get certain interim orders 11 OWP No.2508/2018 for allowing the students to appear in the examination. With the petition an order passed by this court on 20.05.2015 in OWP No. 675/2015 has been annexed. It was directed therein that the respondents therein shall accept registration/examination forms of the petitioner‟s students at the risk and the cost of the students. Though petitioner had made reference to the aforesaid orders in Para 11 of the petition, but without any detail as to whether the aforesaid petition is pending or has been disposed of. However, a perusal of the file of the aforesaid case, it transpires that the aforesaid writ petition is still pending.
16. The fact that after the aforesaid petition, the petitioner had subsequently filed OWP No. 648/2016, is not in dispute. The same was disposed of on 06.03.2017. The order passed therein specifically records that the provisional No Objection Certificate was granted to the petitioner on 26.02.2010 for a period of two years, which was not extended any further. It further records that after the coming into force of the Jammu and Kashmir Paramedical Council Act, 2014, the petitioner institute was inspected and the deficiencies were communicated to the petitioner vide letter dated 10.05.2014. Instead of complying with the aforesaid deficiencies, the petitioner filed OWP No. 675/2015, in which the interim order was passed on 20.05.2015 directing the official respondents to accept the registration/examination forms of the students at their own risk and cost. The aforesaid writ petition was finally disposed of on 01.09.2015 directing declaration of the result of the students of the examination held in April- May, 2015 if the students were otherwise eligible, there was no adjudication of the writ petition on merit.
12 OWP No.2508/2018
17. The order further records that the aforesaid writ petition was disposed of without notice to the respondent, as a consequence the result was declared.
18. The fact remains that though the petitioner has placed on record the interim order passed in OWP No. 675/2015 in the case of the petitioner earlier, however, the status thereof and the final order passed therein has been concealed from the Court.
19. It is further evident from a perusal of the aforesaid order, which was later on confirmed on a perusal of the file of the aforesaid case that vide interim order passed therein on 30.04.2016 the respondents therein were directed to permit the students to appear in the examination subject to fulfilling the eligibility conditions. As the order was passed on 30.04.2016 and the examinations were to commence on 01.05.2016, they were allowed to sit in the examination at their own risk and responsibility, as the eligibility could not be verified.
20. The aforesaid order further records that the petitioner institute which was granted provisional No Objection Certificate only for a period of two years is in fact running the institute without any permission thereafter. The students are being admitted without following the procedure and the permission is sought for their examination from the court and consequently the declaration of the result. The petitioner does not have any infrastructure. After the Jammu and Kashmir Paramedical Counsel Act 2014 came into force with effect from March 14, 2014, in terms of Section 21 thereof existing Paramedical institutes were required to obtain permission of the Government within a period of one year. The petitioner did not obtain even 13 OWP No.2508/2018 the same. The writ petition was disposed of while recording undertaking of the petitioner that removal of deficiencies will be done within a period of one month. Thereafter the council will take appropriate decision with regard to eligibility of the institute within a period of two weeks thereafter. The order specifically records that the petitioner institute shall not admit any fresh students till such time the deficiencies are removed. The relevant lines are extracted below:
"Petitioner Institute would be barred from admitting students for fresh session of courses to commence in case of non removal of deficiencies, if any and subject to rules in respect thereto."
21. Despite this order having been passed in the case of the petitioner when he approached this court earlier pertaining to the same issue and having direct effect on the admission to be carried out from 2017 onwards, the petitioner had the audacity to claim that it has no relevance in the case in hand, hence, neither pleaded nor placed on record. The contention is totally misconceived. It is deliberate attempt to conceal material fact from this Court, which has resulted not only in issuing notice in the main petition but also passing of interim order in his favour on 06.12.2018.
22. Despite the petitioner institute conducting the courses without any permission from the State Government, still the learned Single Judge of this Court showing magnanimity permitted the students to take examination and directed for declaration of their result subject to verification of their eligibility. Needless to add that eligibility will come with the institute in which they were studying, being legal. The fact that the petitioner Institute 14 OWP No.2508/2018 was being run without any permission and infrastructure cannot be disputed even now.
23. Though the aforesaid writ petition has direct relevance with the case in hand but still the petitioner in Para 13 of the petition mentioned that he had not earlier filed any petition before any Court or any other Court. The same reads as under:
"13. That the petitioners have not filed any other writ petition before any other high Court including the Apex Court of the Country. An affidavit in support of the writ petition is enclosed herewith."
24. The petition is supported by an affidavit. Meaning thereby even the affidavit is also wrong.
25. The petition is lacking in other material particulars as well, namely what transpired after passing of the aforesaid order on 06.03.2017. Though the petitioner claims that he had responded to the communication of the council dated 06.06.2014, pointing out deficiencies vide letter dated 11.04.2017 but the same is not part of the paper book. In fact the petitioner did not want to apprise the court as to whether in pursuance to the earlier writ petition filed by him, the deficiencies were removed or not. The aforesaid letter was produced in Court, which is placed on record.
26. Consequent to the aforesaid letter further concealment by the petitioner is to the two communications dated 27.07.2017 and 22.09.2018 (Annexures R-1&2) vide which after inspection was carried out by the team of Paramedical Council, deficiencies were pointed out to the petitioner. The receipt of aforesaid letters by the petitioner is not in dispute. But still even 15 OWP No.2508/2018 those two communications have not been placed on record. These have direct bearing on the case in hand, as after these communications there is nothing pointed out by the petitioner that any communication was sent to the council that the deficiencies had been removed. Further a perusal of the letter dated 27.07.2017 shows that the institute was clearly stopped from admitting the students for the session 2017-18 onwards till the deficiencies were cleared but still the petitioner continued. The claim that the aforesaid communications were also not relevant in the case in hand is difficult to digest. It is nothing else but a deliberate attempt to mislead this Court.
27. If the law laid down by Hon‟ble the Supreme Court, as has been discussed above is considered, the present petition deserves to be dismissed for the reason that there is material concealment of facts in the petition. PROCEEDINGS IN THE CASE IN HAND
28. The present petition was filed in December, 2018. Notice was issued on 06.12.2018, when the following order was passed:
"Notice in the main as also in IA, returnable within three weeks.
List again on 28.12.2018.
Meanwhile, subject to objections, it is ordered that the students from the petitioners‟ Institute shall be permitted to sit in the examination being conducted by the respondents pursuant to advertisement Notice No. 38-SPMC of 2018 dated 17.11.2018 on their own risk and responsibility. However, the same shall not create any indefeasible right in their favour. Their results shall not be declared till further orders. 16 OWP No.2508/2018
Modification/alteration on motion.
Copy of this order be provided to learned counsel for the petitioner under the seal and signature of the Bench Secretary of this Court."
29. Thereafter, the matter could not be taken up. As was the practice followed by the petitioner earlier, he filed CM No. 4148/2019 in May, 2019 seeking a direction for declaration of result. The same was taken up and the notice was issued to the non-applicant/respondents on 07.06.2019. Thereafter on 24.07.2019, this Court passed the following order:
"Learned counsel for the respondents, Mr. Siddiqui, states that in the earlier round of litigation, the petitioner had filed OWP No. 648/2016, which came to be decided by virtue of judgment and order dated 06.03.2017 wherein a coordinate bench of this court had prohibited the petitioner-Institute from admitting the students for fresh session of courses in case of non-removal of deficiencies. What was observed by the court was as under:
".....The Petitioner-Institute would be barred from admitting students for fresh session of courses to commence in case of non-removal of deficiencies...."
It is urged by Mr. Siddiqui that instead of removing the deficiencies, the petitioner-institute has proceeded yet again to make admissions on its own for session 2017-2018. Copies of the examination forms have been furnished to support and buttress such an assertion of Mr. Siddiqui.
17 OWP No.2508/2018
A copy of the judgment and order dated 6.3.2017 as also the examination forms of students for the sessions 2017-2018 are taken on record.
Await appearance of learned counsel for the petitioner. Mr. Siddiqui, learned Sr. AAG shall, in the meantime, place on record any notification issued by the official respondents, notifying the deficiencies in the petitioner- institute. He shall also, with reference to the record, show as to whether the same had been removed and whether there was any request made by the petitioner-institute for inspection on the premise that the deficiencies have been removed.
List again on 17.8.2019."
30. A perusal of the aforesaid order shows that it has been specifically recorded by the court to find out as to whether the admissions were made by the petitioner after pronouncement of the judgment on 06.03.2017, in the earlier petition filed by him.
31. On 29.07.2019 while taking on record the order passed by this Court in the earlier OWP No. 648/2016 and recording the bar on the petitioner to admit students, learned counsel for the State was directed to produce the communication notifying the deficiencies to the petitioner. As a result the effort of the petitioner to get the result of the students declared failed. Another attempt was made by the petitioner to hoodwink the Court when an application was filed in October, 2019 seeking permission to withdraw the writ petition with liberty to file fresh one with better particulars. However, noticing the catch in the entire scheme, when 18 OWP No.2508/2018 confronted to the counsel for the petitioner, the application was withdrawn on 10.10.2019.
32. On 11.12.2019, the arguments in the main petition were heard. MERITS
33. Though the petitioner is not entitled to be heard on merits of the controversy considering his conduct where he is guilty of concealing material facts from the court, but still this Court finds that even on merits, there is no case made out. There is nothing on record to show that after the provisional No Objection Certificate was granted to the petitioner on 26.02.2010 for a period of two years, there is any extension thereof. There is nothing on record to show that after the 2014 Act came into force, the petitioner had any permission from the Government to run the institute for conducting Paramedical Courses. Every time the petitioner approaches this court and seeks interim order. The same was the effort in the present litigation as well. The deficiencies as pointed out by the council vide communications dated 27.07.2017 and 22.09.2018, have not been removed as there is no response by the petitioner thereafter. Once it is so, the prayer made by the petitioner cannot be allowed as any institute which is not more than a shop, is trying to conduct Paramedical Courses for taking health care of the patients, which cannot be allowed to continue. The relief prayed for as such cannot be granted.
REGARDING PRAYER FOR INPECTION OF THE INSTITUTE
34. As far as the contention of the petitioner regarding inspection of the institute now is concerned, the petitioner shall be at liberty to respond to the deficiencies pointed out by the council vide letters dated 27.07.2017 and 19 OWP No.2508/2018 22.09.2018. In case it is done, the institute may be inspected and if all the requisites are fulfilled by the petitioner, the competent authority may grant him permission to start the institute. Mind it, it is not continuation of the permission as there is no permission after the year 2012. It will be starting the institution afresh. The petitioner will also be required to fulfil the requirements of the 2014 Act, besides other requisites. REGARDING THE STUDENTS ADMITTED
35. As the petitioner had in a way cheated the students, granting them admission projecting that this is an institute which is duly recognized and approved by the State and the Council, which in fact it is not, the petitioner is burden with the damages of ₹ 50,000/- each, to be paid to all the students admitted after 2017, within a period of two months from the date of receipt of copy of the order. This will be in addition to the refund of the fee and other charges paid by those students to the petitioner. The damages awarded by this court is not a final. If any of the student finds the damages to be insufficient, he/she shall be entitled to avail appropriate remedy for claiming appropriate damages from the petitioner Institute. SCHEME OF THE JAMMU AND KASHMIR PARAMEDICAL COUNCIL ACT, 2014
36. The Scheme of the aforesaid Act, which came into force from March 14, 2014, reads as under:
"Statement of objects and reasons-1, Modern medical care cannot be undertaken without help of the allied health professionals like the Medical Laboratory Technicians, ECG Technicians, EEG Technicians, EMG Technicians, Ophthalmic 20 OWP No.2508/2018 Assistants, X-ray Technicians, etc. The Paramedical Technicians Services thus have a vital role in the health care system. Though they from a vital link in the hospital service, there is no law or machinery to control the various Paramedical Technicians "course conducted by the various agencies in the State and also there is no control by the State over the laboratory and diagnostic services in the private sector. In order to evolve a uniform standards in the practice of these Paramedical Technicians" profession it is absolutely essential that persons who have attained a minimum standard of professional education are only be permitted to practice such professions. Therefore, Government have decided to establish a Paramedical Technicians council for fixing the minimum educational standards of Paramedical Technicians and for giving approval to the course of study and examinations and for granting approval to the institutions those conducting for such courses and for maintaining a register of the qualified Paramedical Technicians in the State.
2. The Bill seeks a achieve the above object.
An Act to provide for establishment of Paramedical Council in the State and to regulate the practice by Paramedical Practitioners and institutions."
37. Section 3 of the Act provides for establishment of Paramedical Council which consists of senior officials.
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38. Section 18 provides for powers and functions of the Council, which includes prescribing the Code of Ethics of registered Paramedical Practitioners to lay down the norms and standard courses, curricula, physical and instructional facilities, staff pattern, staff qualification, quality instructions, assignment, examination and continuing medical education, to inspect paramedical institutions, to provide guidelines for admission of the students in para-medical institution, to constitute or authorise a Board for conducting the examination and to maintain uniformity of standard, to prescribe minimum standard for the establishment of para-clinical establishment.
39. In term of Section 19, no para-medical institute could be established except with the prior permission of the Government, which lays down complete procedure for approval of a scheme for establishment of a new Institution.
40. In term of Section 20, the para-medical qualification given to any student by an Institute which has been set up without prior permission from the Government is not to be recognized.
41. In term of Section 21, the exiting institutes are to get approval within a period of one year from the date of commencement of the Act.
42. Section 26 provides for prescribing minimum standards of para- medical education, whereas Section 27 deals with registration of the para- medical establishments. A schedule has been attached to the Act providing for various qualifications.
43. The authority including the council need to examine the issue as to why the list of approved institutes imparting para-medical education 22 OWP No.2508/2018 cannot be published in the newspaper well before the start of admissions for any session so as to apprise the prospective candidates and ensure that they are not cheated in the process. It can also be part of a schedule attached to the Act.
44. Further the process of admission to all the Institutes can also be streamlined by authorizing one single agency so that only those institutes are allowed to participate which are recognized and admission should not be permitted to be made by the Institutes at their own level.
45. We are living in the era of technology. The same should be utilized in the present process as well. There should be web portal of the council or the agency conducting the examination having the list of all the approved Institutes. Within certain specified time, the institutes should be duty bond to upload the data of the admissions made in their respective colleges for approval by the council. In the absence thereof, the admissions may not be regularized. This will ensure monitoring of all the admissions and check any interpolation in record, if made. With the web portal, even the faculty and the infrastructure available in the Institutes can also be verified as it should be mandatory for all the Institutions to upload the data on standard format.
RESPONSIBILITY OF THE STATE/REGULATORY BODIES
46. It is the responsibility of the State and/or the Regulatory bodies constituted under the relevant statutes or otherwise to monitor quality of education imparted by any private or government institute. The idea is to bring best product out, which could serve the society in the field in which they have been educated and stay ahead in the competitive market. But what 23 OWP No.2508/2018 is evident from the facts of the present case is that this responsibility is not being discharged by the persons at the helm of affairs. The institutes are running and conducting courses without any permission. While passing orders on 06.12.2018, in OWP No. 2508/2018 this court directed for permitting the students of the petitioner institute to appear in examination or declaration of their results, if they were otherwise eligible. How without verifying their eligibility they were permitted to appear in examination or their result was declared when till date even permission of the petitioner Institute, where they were studying, is in dispute. How any student who has been wrongly admitted in an institute which has no recognition or permission can be said to be eligible to appear in examination and his result be declared, is a mystery. This may not be the isolated case where the students may have been permitted to appear in exams and their results declared. The authorities should not forget one thing that the students who are imparted education in para medical courses are ultimately to engage themselves in the health care industry, playing with lives of the people. Half baked education imparted to these students is certainly dangerous.
47. Another important aspect which needs to be kept in view, though always over looked, is the assessment of number of institutes required and the areas where these are to be permitted? Opening number of colleges and granting degrees/diplomas to the students without there being assessment of employment opportunities thereafter creates glut of trained persons, which only results in frustration. Considering mushrooming of law colleges in the country and glut of law graduates and down fall in quality of legal education, the Bar Council of India has taken a decision to put a 24 OWP No.2508/2018 moratorium on opening of new law colleges in the country for a period of three years with certain exceptions such as National Law University, if proposed by a government in a State where there is no such varsity besides, any model institution of Legal Education. The chairman of the Bar Council of India stated that "At present, there are enough Institutions in all parts of the country to feed the law courts and to serve the people. There is no dearth of advocates and the existing institutions are sufficient to produce the required number of law graduates annually".
48. This is not limited to legal education only. Data available also shows that in many of the States, Engineering colleges had to close down because there were no students and so was the position with regard to the Education colleges, where thousands of seats remained vacant. It was a result of bad planning. Here the role of the regulatory body steps in and assumes importance to find out how much colleges/Institutes are required to impart particular education. Shortage of trained faculty is another major issue coupled with this is the quality of education imparted. Without proper infrastructure these Institutes will be nothing else than mere shops. This court is not opining on this issue but has noticed this just as a food for thought for the authorities to apply their mind on the issue.
49. RELIEF
1) For the detailed reasons recorded above, the present writ petition is dismissed.
2) In case the petitioner completes the deficiencies, as pointed out by the council vide letters dated 27.07.2017 and 22.09.2018, he shall be at liberty to approach the competent 25 OWP No.2508/2018 authority for inspection and the needful shall be done thereafter as discussed in para 34 of the judgment.
3) Each of student admitted from 2017 onwards, without Institute being recognized, are directed to be paid ₹ 50,000/- each as damages. In case they find the damages to be insufficient, they shall be entitled to avail any appropriate remedy for claiming any amount of damages from the petitioner-Institute. In addition to the aforesaid amount, the entire fee or any charges received by the petitioner from the students shall be refundable to them. Needful be done within two months from the date of receipt of copy of the order.
(RAJESH BINDAL) JUDGE Jammu 24.12.2019 Vijay Whether the order is speaking: Yes/No Whether the order is reportable: Yes VIJAY KUMAR 2019.12.24 16:37 I attest to the accuracy and integrity of this document