Himachal Pradesh High Court
Shimla Valley Nursing College vs State Of H.P And Others on 21 December, 2022
Bench: Tarlok Singh Chauhan, Virender Singh
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
CWP No. 7920 of 2022
.
Decided on: 21st December, 2022
Shimla Valley Nursing College .......Petitioner
Versus
State of H.P and others ...Respondents
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon'ble Mr. Justice Virender Singh, Judge.
Whether approved for reporting?1
For the petitioner: Mr. Shrawan Dogra, Senior
Advocate with Mr. Tejasvi Dogra
and Mr. Bharat Thakur,
Advocates.
For the respondents: Mr. Anup Rattan, Advocate
General with Mr. Shiv Pal
Manhans, Addl. A.G and Mr. Rajat
Chauhan, Law Officer for
respondents No. 1 and 2.
Mr. Vijender Katoch, Advocate for
respondent No.3.
Ms. Tanu Sharma, Advocate for
respondent No.5.
Tarlok Singh Chauhan, Judge. (Oral)
The instant petition has been filed for the grant of following substantive reliefs:-
i) That the perverse opinions contained in the undated Evaluation Report of the Directorate Level Committee 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.::: Downloaded on - 23/12/2022 20:32:34 :::CIS 2
(Annexure P-10), which was received under RTI, are contrary to INC Act of 1947, HPNRC Act, 1977, INC .
Guidelines, HPNRC 2018 Bye-laws, and the law laid down by this Hon'ble Court and as such may be read down to that extent;
ii) That the Nursing Policy dated 29.09.2020 and Amendment policy dated 30.11.2021, Annexures P-4 and P-4/1) be declared ultra vires being contrary to the Indian Nursing Council Act, 1947, INC Guidelines and Minimum Requirement for Establishing M.Sc.
Nursing Program, H.P. Nursing Registration Act, 1977 and the Bye-laws made thereunder;
iii) That direction may be issued to reconsider the case by Directorate Level Committee and make recommendations in consonance with INC Guidelines and HPNRC Byelaws and thereafter, the respondent authorities may be directed to grant Essentiality-cum- feasibility/ NOC to the petitioner College forthwith;"
2. We are really appalled by the manner in which the respondent-State has been taking the directions passed by this Court from time to time and conveniently ignoring the same to suit its purpose. This Court while adjudicating CWP No. 142 of 2021 titled as Sri Sai School/College of Nursing Charitable Medical Sciences vs. State of H.P and others, decided on 9th September, 2021 has clearly declared the private Nursing ::: Downloaded on - 23/12/2022 20:32:34 :::CIS 3 Institution policy to regulate the opening of Nursing Institutions .
in private sectors in the State of H.P. to be unenforceable as being contrary to the Indian Nursing Council Act, 1947, H.P. Nurses Regulation Act, 1977 and the H.P. Regulation bye-law 2018 (framed under the Act of 1977). The effect of the judgment is that the policy has become unenforceable and the same.
r to inoperable and, therefore, the Government cannot rely upon
3. As regards, one of us (Tarlok Singh Chahan, J.), while adjudicating CWP No. 1217 of 2016 filed by the petitioners, had observed in para 17 to 24 as under:-
"17. At the outset, we may observe that the petitioners appear to have been dragged into unnecessary and unwarranted litigation, which could have conveniently been avoided in case the respondents would have acted fairly and impartially. We observe so because the complaint filed by Sh. Narender Thakur, Councilor could not have formed one of the basis for rejecting their case for grant of approval, more particularly, when the contents of the complaint have not even been spelt out.
18. That apart, admittedly, no inquiry was conducted on such complaint and even copy thereof was not supplied to the petitioners so as to enable them to make representation. Therefore, the action of the respondents is clearly in violation of natural justice and fair play.::: Downloaded on - 23/12/2022 20:32:34 :::CIS 4
19. Adverting to the other ground for rejection, which is regarding the land for the proposed programme, being on a .
private land and not in the name of the institute, suffice it to say that as per the recognition order placed in case of other institute, the respondent No.2 itself has granted six months time to have the land transferred as would be evident from clause 7 of the recognition order dated 2.3.2015 (Annexure P-
11) wherein it is clearly provided as under:
"7. In case if the land is in the name of the Society/trust, the land is to be transferred within six months in the name of the institution, failing which action shall be initiated to withdraw the recognition. It shall be essential on the part of the institution concerned to get the needful done in this regard and intimate about the same to the respective Regional Committee alongwith the new land documents within the stipulated time."
Therefore, this is clearly a case of invidious discrimination wherein the petitioners alone have been discriminated against, whereas other similarly situated societies/trusts have been granted six months time to have the land transferred in the name of institution.
20. Not only this, we in view of the earlier order passed by the appellate authority further find the action of the respondents to be unsustainable, whereby the respondents had already granted six months time to the petitioners to establish their ownership over the property through legally permissible documents and to show their ability to transfer the land and built up area thereupon in the name of the institution, as would be evident from the order dated 13.10.2015, relevant portion whereof reads thus:
::: Downloaded on - 23/12/2022 20:32:34 :::CIS 5"AND WHEREAS Committee noted that application for M.Ed. course was made by Shimla Educational Society Trust .
on 30.12.2012 and the name of appellant college is Shimla College of Education. The land documents enclosed with the application consist of a Lease Deed. The lease is granted by Shimla Education Society in favour of the Shimla College of Education. Committee further noted the relevant contents of clause 8(4) (i) & 8 (4) (iii) of the NCTE Regulations, 2014 which lay down as under: (i) No institution shall be granted recognition under these regulations unless the institution or society sponsoring the institution is in possession of required land on the date of application. The land free from all encumbrances could be either on ownership basis or on lease from Government or Government institutions for a period of not less than thirty years. In cases where under relevant State or Union territory laws the maximum permissible lease period is less than thirty years, the State Government or Union territory administration law shall prevail and in any case no building shall be taken on lease for running any teacher training programme, (ii) The society sponsoring the institution shall be required to transfer and vest the title of the land and building in the name of the institution within a period of six months from the date of issue of formal recognition order under sub-regulation (16) of regulation 7. However, in case, the society fails to do so due to local laws or rules or bye-laws, it shall intimate in writing with documentary evidence of its inability to do so. The Regional Office shall keep this information or record and place it before the Regional Committee for its approval.::: Downloaded on - 23/12/2022 20:32:34 :::CIS 6
AND WHEREAS keeping in view the above provisions of NCTE Regulations, 2014, Appeal Committee is of the opinion .
that so long as appellant society is able to establish its ownership rights over the property through legally permissible documents and also able to transfer the land and built up area thereupon in the name of the appellant institution within 6 months after the grant of recognition, there is no objection to the appellant society's leasing out the land to the applicant college.
AND WHEREAS Appeal Committee, having considered the submissions made by appellant and the relevant clauses of the NCTE Regulations, 2014 decided to remand back the case to N.R.C. with a direction to process the application as per Regulations, 2014.
AND WHEREAS after perusal of the memorandum of appeal, affidavit, documents available on records and considering the oral arguments advanced during the hearing, the Committee concluded that the appeal deserves to be remanded to NRC with a direction to process the application as per Regulations, 2014.
NOW THEREFORE, the Council hereby remands back the case of Shimla College of Education, Sanjauli, Shimla, Himachal Pradesh to the NRC, NCTE, for necessary action as indicated above."
(underlining supplied by us)
21. The respondents could not have sat over the order passed by the appellate authority and it is only when the petitioners would have shown their inability or failed to comply with the terms of the appellate authority, could they have rejected the case of the petitioners.
::: Downloaded on - 23/12/2022 20:32:34 :::CIS 722. We are really at a complete loss to understand and as to how and why the respondents have once again rejected the .
case of the petitioners, that too, on the ground of violation of provisions of clause 8 (4) (i) of the Regulations. Undoubtedly, the respondents are vested with the authority to grant or refuse the recognition but the same has to be in accordance with law and the rejection cannot be left to the whims and caprices of the authorities (respondents), as is clearly reflected in the instant case.
23. It is unfortunate that the petitioners have repeatedly been compelled to approach this Court and within a span of five years have been constrained to file the seventh petition, earlier ones being:
1. CWP No. 5944/2010 decided on 23.4.2012
2. CWP No. 1062/2014 decided on 1.5.2014
3. CWP No. 3279/2015 decided on 6.8.2015
4. CWP No. 3945/2015 decided on 17.9.2015
5. CWP No. 4283/2015 decided on 30.11.2015
6. CWP No. 4755/2015 decided on 22.3.2016
24. That apart, the petitioners have time and again have time and again been compelled to approach the appellate authority against the action/inaction of the respondents."
4. The aforesaid petition was disposed of on 8.11.2016.
5. Yet even thereafter the petitioner has been dragged into unnecessary and otherwise avoidable litigation despite strictures and scathing observations against the ::: Downloaded on - 23/12/2022 20:32:34 :::CIS 8 respondents. It is high time that the respondents put their house in order and fall in line or else the Court shall be constrained to take .
coercive action against the erring respondents.
6. Since the inspection conducted by the respondents is on the basis of the Government policy, instead of it being based upon the norms fixed by the Indian Nursing Council as also the statutory bye-laws framed by the H.P. Nursing Council, therefore, the evaluation report of Directorate Level Evaluation Committee is quashed and set aside.
7. Consequently, the writ petition is allowed and the respondents are directed to submit a fresh evaluation report based upon the report submitted by the SDM-cum-Chairman, Inspection Committee by assessing the same only on the basis of the Indian Nursing Council norms and bye-laws framed by the State Nursing Council. Such evaluation be made within a week.
Pending application(s), if any, also stands disposed of.
For compliance, to come up on 2nd January, 2023.
( Tarlok Singh Chauhan )
Judge
December 21, 2022 ( Virender Singh )
(naveen) Judge
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