Allahabad High Court
Yashraj Inst.Of Prof.Studies Thru. ... vs Indian Nursing Council New Delhi & Ors. on 16 December, 2021
Author: Manish Mathur
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 6 Case :- MISC. SINGLE No. - 11790 of 2021 Petitioner :- Yashraj Inst.Of Prof.Studies Thru. Secy. Ashish Shukla Respondent :- Indian Nursing Council New Delhi & Ors. Counsel for Petitioner :- Ashok Kumar Singh,Anshuman Singh Counsel for Respondent :- C.S.C.,Gyanendra Kumar Srivastav,Samidha Hon'ble Manish Mathur,J.
1. Heard Mr. Prashant Chandra, learned Senior Advocate assisted by Mr. Anshuman Singh, learned counsel for petitioner, Ms. Samidha, learned counsel for opposite party no.1, learned State Counsel for opposite party no.2 and Mr. Gyanendra Kumar Srivastava, learned counsel for opposite party no.3. Opposite party no.4 being merely proforma in nature, notices to it stand dispensed with.
2. Petition has been filed seeking the following main relief:-
i) issue a writ, order or direction in the nature of Mandamus commanding opposite parties 2 and 3 to forthwith issue a No Objection Certificate/Essentiality Certificate and recognition for running the M.Sc. (Nursing Programme) as mandated under Regulation 22 of the Indian Nursing Council Regulations.
ii) issue a writ, order or direction in the nature of Mandamus commanding opposite parties not to create any obstacle or hindrance in the imparting of training in the M.Sc. (Nursing Programme) and in taking admissions for the academic year 2020-21 and for starting the same.
iii) issue a writ, order or direction in the nature of Mandamus commanding opposite party no.3 to forthwith refund the amount of Rs.5 lacs collected as inspection fee together with such interest as may have accrued thereon and as may be ordered by this Hon'ble Court to be paid to petitioner within such time as may kindly be stipulated;
3. Learned counsel for petitioner submits that paragraph 4 of Circular dated 19.02.2009 issued by Indian Nursing Council stipulates that institutions could start nursing programme [GNM/B.Sc.(N)] with affiliation or parent Hospital with minimum of 120/150 beds. It is submitted that since petitioner-institution had affiliation with various Hospitals, petitioner-institution was granted recognition for conducting B.Sc. (Nursing) Program on 31.01.2011 which was renewable every year and in pursuance thereof, recently opposite party no.3 i.e. U.P. State Medical Faculty on its website indicated petitioner's continued recognition for the said course for the academic session 2020-21. It is submitted that as such, petitioner-institution has conducted the aforesaid programme for the past ten years continuously and the course pertaining to first batch of students was also completed in the year 2016.
4. It is submitted that subsequently with regard to conduct of the courses, the Indian Medical Council issued notification known as the Indian Nursing Council (Minimum Prerequisites for granting suitability to Nursing Programs) Regulations, 2020 (hereinafter referred to as Regulations of 2020). The regulations have been framed in accordance with Indian Nursing Council Act, 1947 (hereinafter referred to as Act of 1947) and, therefore have statutory force. It is submitted that Regulation 22 of Regulations of 2020 prescribes minimum pre-requisites for starting M.Sc. (Nursing) course with Regulation 22(ii) indicating that an institution offering B.Sc. (Nursing) program wherein one batch has passed out is eligible to start M.Sc. (Nursing) program.
5. As such, it is submitted that the only condition required for an institution to be eligible to start M.Sc. (Nursing) program was conduct of B.Sc. (Nursing) program where one batch had passed out. It is submitted that the procedure for obtaining Essentiality Certificate/No Objection Certificate were thereafter indicated in Regulation 22 (iii), (iv) and (v). Learned counsel submits that petitioner-institution being fully eligible to conduct M.Sc. (Nursing) program applied on 17.01.2020 but result thereupon has not seen light of the day leading to filing of present writ petition.
6. It has further been submitted that in terms of the procedure indicated under Regulation 22(iii), the eligible Establishments/Organizations are required to obtain Essentiality Certificate/No Objection Certificate firstly from the concerned State Government where the program is sought to be established. It is further submitted that a reading of aforesaid provision will indicate that No Objection is required to be issued by the State Government pertaining only to verification of bona fides of the institution requiring to conduct aforesaid programmes. It is submitted that it is only once the State Government concerned issues No Objection Certificate that the institution is required to obtain Essentiality Certificate/No Objection Certificate from the concerned State Nurses and Midwives Registration Council (SNRC). It is submitted that in the State of U.P., opposite party no.3 is the concerned SNRC but its role would commence only after the State Government provides Essentiality Certificate/No Objection Certificate.
7. As such, it has been submitted that petitioner being fully eligible to conduct M.Sc. (Nursing) program in terms of Regulation 22, the State Government is required to issue No Objection Certificate so as to enable the petitioner-institution conduct the aforesaid programmes.
8. Learned counsel appearing on behalf of opposite party no.1 upon instructions admitted that Indian Nursing Council had granted petitioner-institution recognition to conduct B.Sc. (Nursing) program in 2011 and its suitability was renewed thereafter every year. It is also admitted that petitioner-institution has already completed the first batch of the course of B.Sc. (Nursing) program. It is also admitted that the recognition granted to petitioner-institution in 2011 has neither been rescinded nor withdrawn.
9. Learned counsel appearing on behalf of opposite party no.3, however, has submitted that even for the purposes of issuance of Essentiality Certificate/No Objection Certificate from the concerned State Government in terms of Regulation 22 (iii) of Regulations of 2020, it is the SNRC concerned, i.e. opposite party no.3 which is required to conduct an inspection and provide a report to State Government. As such, it is denied that opposite party no.3 does not have any role in the matter. It has been further submitted that Regulations specifically provide for inspection being conducted by opposite party no.3, which is not merely an administrative exercise and is required to be done to its fullest to achieve the objects of the Regulations and the Act and in order to ascertain the bona fide of any institution which applies for such a course. Learned counsel has also relied upon a judgment and order dated 24.07.2017 passed by High Court of Karnataka at Bangaluru in W.P. No.25355-25357/2017 (Karnataka State Association of the Management of Nursing and Allied Health Science Institutions and others v. Indian Nursing Council & others) with the submission that after passing of the aforesaid judgment and order, the Indian Nursing Council does not have any authority or competence to grant recognition to any institution for any nursing courses and it is only the SNRCs which have been authorized to do so. It is submitted that as per his instructions although appeal against the aforesaid judgment was filed but the same was withdrawn. As such, it is submitted that it is only opposite party no.3 being SNRC who is competent authority to grant recognition to new Nursing course. It has also been submitted that Regulation 4(ii) of Regulations of 2020 clearly specifiy the minimum pre-requisites for starting GNM/B.Sc.(Nursing) program that the eligible Establishments/Organizations should have their own 100 bedded Parent Hospital. Since petitioner-institution does not have its own 100 bedded Parent Hospital, it is ineligible to be considered for starting an M.Sc. (Nursing) program in accordance with Regulations of 2020.
10. Considering the aforesaid submissions advanced by learned counsel for the parties and upon perusal of material on record, it is an admitted fact that prior to advent of Regulations of 2020, recognition for conduct of B.Sc. (Nursing) program was subject to eligibility and qualifications prescribed under Circular dated 19.02.2009 by Indian Nursing Council. Paragraph 4 of aforesaid Circular clearly indicates that institutions can start nursing programme [GNM/B.Sc.(N)] with affiliation or parent Hospital with minimum of 120/150 beds. It is in accordance with the Circular of 2009 that admittedly petitioner-institution was granted recognition by Indian Nursing Council in 2011 for conduct of B.Sc. (Nursing) program. It is the specific case of petitioner institution that petitioner although did not have its own parent hospital but had affiliation with various Government as well as private hospitals, which was a fact recognised by Indian Nursing Council while granting recognition in year 2011. It is also a relevant fact as admitted by opposite party no.1 upon instructions that initial recognition granted to petitioner-institution for conducting B.Sc. (Nursing) program still holds good and has neither been rescinded nor withdrawn and in pursuance thereof, the first batch of the course has also been completed. It is also an admitted fact that even as on date, petitioner-institution does not have its own parent hospital.
11. So far as submission of opposite party no.3 is concerned that the institution is ineligible to conduct M.Sc. (Nursing) program since it does not have its own parent hospital, it is seen from the record that such a stipulation is required only for the purposes of starting B.Sc. (Nursing) program. It is also on record that resolution dated 29.10.2014 was issued by Indian Nursing Council pertaining to implementation of Nursing Educational Standards. Paragraph 17 is with regard to starting of the Nursing Programme with effect from 2013-14. The resolution specifically indicates that an institution is required to have 100 bedded parent hospital for opening new B.Sc. (Nursing) program but the same would not affect institutions which have been established without parent hospital. The resolution also indicates that institutions under the State Government and Central Government which wish to start or open M.Sc. Nursing Department are exempted from the twin criteria of having parent hospital or one batch of B.Sc. Nursing students having passed out provided they are affiliated to State or Central Government Hospitals.
12. It is the assertion of learned counsel for opposite party no.3 that since petitioner-institution is not an institution under the State or Central Governments, the exemptions would be inapplicable upon them and they will therefore be required to fulfil the mandatory condition of having their own parent hospital.
13. From the facts narrated herein above, it is evident that at the time of recognition of petitioner-institution, the only condition required was for the petitioner-institution either to have a parent hospital or to have an affiliation with regard to same. The resolution of Indian Council clearly exempts the condition of having a 100-bedded parent hospital for those institutions which have already been established without parent hospital such as petitioner-institution.
14. Clause 3 of paragraph 17 of the Resolution is clearly applicable upon institutions operated under the State Government and Central Government wishing to start an M.Sc. (Nursing) Department. The exemption clause would be referable to the Regulations framed under the Act and do not operate in a vacuum.
15. In the intervening period, Regulations of 2020 have been issued on 12.03.2021 in terms of the Act of 1947. It would supersede the resolutions of the Indian Nursing Council particularly since they have statutory force.
16. As per Regulation 22 of Regulations of 2020, the only minimum pre-requisite required for starting M.Sc. (Nursing) program is for an institution offering B.Sc. (Nursing) program where one batch has passed out.
17. It is not the case of opposite parties that the institution does not have a currently operating B.Sc. (Nursing) program or that one batch of B.Sc. (Nursing) program has not passed out. There is no such condition indicated in Regulation 22 that an institution desirous of commencing M.Sc. (Nursing) program is required to have a 100-bedded parent hospital. It is not a case of casus omissus. This Court cannot read a condition which is not indicated in the statutory regulations. Since there is no ambiguity in the condition indicated in Regulation 22, there is no requirement of having or taking any external aid and the provision has to be read as it is. Since it is the admitted case of opposite parties that petitioner's recognition is still operative right from 2011 and one batch of B.Sc. (Nursing) program has passed out in the year 2016, clearly petitioner-institution fulfils the minimum pre-requisites required for starting M.Sc. (Nursing) program in terms of Regulation 22 of Regulations of 2020.
18. So far as role of opposite party no.3 is concerned, Regulation 22(iii) clearly indicates the first stage of grant of recognition and prescribes that the eligible establishments/organizations are required to obtain Essentiality Certificate/No Objection Certificate from the concerned State Government. The provisions in regulation 22 of Regulations of 2020 are as follows:-
"22. Minimum pre-requisites {for starting M.Sc. (Nursing)}
(i) The following Establishments/Organizations are eligible to start a M.Sc. (Nursing) program.
a) Central Government/State Government/Local Body;
b) Registered Private or Public Trust;
c) Organizations registered under Societies Registration Act including Missionary Organizations;
d) Companies incorporated under Section 8 of Company's Act.
(ii) An institution offering B.Sc. (Nursing) program wherein one batch has passed out is eligible to start a M.Sc. (Nursing) program.
OR Super specialty hospital having the following requisite beds is eligible to start a M.Sc. (Nursing) program.
.......................
......................
(iii) The eligible Establishments/Organizations should obtain Essentiality Certificate/No Objection Certificate from the concerned State Government where the M.Sc. (Nursing) program is sought to be established. The particulars of the name of the College/Nursing Institution along with the name of the Trust/Society [as mentioned in Trust Deed or Memorandum of Association] as also full address shall be mentioned in No Objection Certificate/Essentiality Certificate.
(iv) After receipt of the Essentiality Certificate/No Objection Certificate, the eligible institution shall get recognition from the concerned SNRC for the M.Sc. (Nursing) program for the particular Academic Year, which is a mandatory requirement.
(v) The Council shall after receipt of the above documents/proposal online would then conduct Statutory Inspection of the recognized training nursing institution under Section 13 of the Act in order to assess the suitability with regard to availability of Teaching Faculty, Clinical and Infrastructural Facilities in conformity with Regulation framed under the provision of the Act.
.......................
......................"
19. From a perusal of aforesaid Regulation 22 (iii), it is apparent that the initial No objection Certificate is required to be obtained by Establishments/Organizations from the State Government where the nursing programme is sought to be established along with particulars indicated therein. The dichotomy between the provisions of Regulation 22 (iii) and (iv) are self-evident. The role of SNRC is clearly indicated as being operative after the No Objection Certificate has been issued by the State Government. The Regulation does not prescribe any role to SNRC prior to issuance of any No Objection Certificate from the State Government. The purpose of obtaining No objection Certificate from the concerned State Government appears only to test the bona fides of the Organizations seeking recognition to conduct M.Sc. (Nursing) course. As such, the initial burden of issuing No objection Certificate is only upon the State Government and not upon the State Nurses and Midwives Registration Council.
20. So far as the judgment relied upon by learned counsel for opposite party no.3 is concerned, the same pertains to competence of the Indian Nursing Council for grant of recognition to organizations desirous of conducting nursing courses. It has been held that the Indian Nursing Council has no authority to grant recognition to institutions imparting nursing courses.
21. It is a relevant fact that the said judgment has been rendered six years after petitioner-institution has already been recognized by the Indian Nursing Council, which still holds good. A reading of the said judgment does not make it apparent that it is retrospective in nature or that recognition granted by Indian Nursing Council prior to passing of the judgment would render all such recognition de facto withdrawn or rescinded. As such, it is the considered opinion of this Court that the aforesaid judgment rendered by High Court of Karnataka would be inapplicable in the present facts and circumstances.
22. Considering the aforesaid facts and circumstances and the observations made, it is apparent that the petitioner's application for grant of No objection Certificate for conducting the M. Sc. (Nursing) courses is required to be issued only by the State Government strictly in accordance with the provisions of Regulation 22 of Regulations of 2020.
23. As such a writ in the nature of Mandamus is issued commanding opposite party no.2 to consider the application of petitioner-institution for conduct of M.Sc. (Nursing) course strictly in terms of Regulation 22 of Regulations of 2020. Relevant orders pertaining to same shall be passed within a period of 15 days from the date a copy of this order is produced before the concerned authority.
24. So far as prayer no.3 to writ petition is concerned, although learned counsel for petitioner has submitted that opposite party no.3 is incompetent to have collected the amount as inspection free but this Court at this stage is not entering into the dispute granting liberty to petitioner to approach appropriate authority for redressal pertaining to said grievance. In case any such representation is filed, the same shall be decided by a reasoned and speaking order within a period of six weeks from the date a copy of this order is produced before the concerned authority.
25. With aforesaid observations and directions, the petition is partly allowed.
Order Date :- 16.12.2021 kvg/-