Dr. Joshy.C. George vs State Of Kerala on 12 October, 2012

[Cites 13, Cited by 21]

Kerala High Court

Dr. Joshy.C. George vs State Of Kerala on 12 October, 2012

This writ petition is a second round litigation on the same subject matter with a different cause of action. Earlier, the petitioner filed W.P.(C) No. 16442/2012 seeking mainly a direction to grant affiliation to the petitioner's college for enhanced seats, which is approved by Indian Nursing Council, Kerala Nursing Council and Kerala University of Health and Allied Sciences, without insisting NOC of the Government. But in the counter statement, Government expressed its willingness to consider application for NOC for the enhancement of seats from 50 to 60 and the petitioner expressed his willingness to file such an application. In that circumstance, we directed the Government to consider the application, within a specified time, if the application is filed within the stipulated time and accordingly the writ petition was disposed of by Ext.P15 Judgment of this Court. Now the present grievance of the WPC 19949/2012 -2- petitioner in this second round of litigation is that the petitioner's application for NOC, pursuant to Ext.P15 order of this Court, has been rejected by Ext.P19 order of the Government on the ground that clinical facilities are inadequate in the parent hospital as well as in affiliated hospitals and Student-Patient ratio is not maintained as per the norms. This writ petition is filed challenging Ext.P19 order on the ground that it is arbitrary, illegal, unsustainable and passed on extraneous considerations.

2. Briefly put, the averments in the writ petition are as follows:

The petitioner is the Chairman of a self financing Nursing College by name Josco College of Nursing, Panthalam in Alappuzha District. The above college is affiliated to the Kerala University of Health and Allied Sciences and obtained approval from the Indian Nursing Council and the Kerala Nursing Council for conducting M.Sc. and B.Sc. nursing courses. By Ext.P1, the Government of India declared that the aforesaid college is a minority educational institution covered under Article 30 of the Constitution of India.

WPC 19949/2012 -3-

3. The Kerala University of Health & Allied Sciences granted consent of affiliation to M.Sc courses in various disciplines during the academic year 2012-13. The Indian Nursing Council and the Kerala Nurses and the Midwives Council granted their approval to various disciplines of M.Sc. nursing programme by Exts.P3 to P5.

4. As per Ext.P6, the Kerala University of Health & Allied Sciences granted consent of affiliation to the enhancement of seats in B.Sc. nursing from 50 to 60 seats in the petitioner's college for the academic years 2011-12 and 2012-13. As per Ext.P7, the Indian Nursing Council approved the enhancement of students to be admitted in petitioner's college from 50 to 60 for the year 2011-12 and till next inspection. As per Ext.P8, the Kerala Nurses and Midwives Council accorded sanction to admit 60 students for B.Sc. Nursing during the year 2012-13.

5. The grievance of the petitioner is that though the petitioner as per letter dated 15-06-2012 requested the second respondent University to give affiliation for enhancement of seats in B.Sc. nursing course; the second respondent as per Ext.P9 letter dated 21-06-2012 informed the petitioner that the WPC 19949/2012 -4- application for affiliation to enhancement of seats in B.Sc. nursing course for the year 2012-13 will be considered only on production of No Objection Certificate from the Government of Kerala. The Government of Kerala by Ext.P10 circular issued guidelines for affiliation of self financing medical/ dental/ nursing and paramedical institutions to the Kerala University of Health and Allied Sciences. It is averred that the Government has no power to issue such circular, nor the University has any obligation to obey such directions. That apart, the petitioner's college has already entered into an agreement with the Government regarding admission of B.Sc. Nursing for the academic year 2011-12. The petitioner entered into similar agreement with the Government for the year 2012-13 by Ext.P11. The Government of Kerala by Ext.P11 order dated 30-06-2012 notified the list of self financing colleges which entered into agreement with the Government of Kerala on admission and fee regarding B.Sc. nursing course for the academic year 2012-13. The petitioner's college is also included in Ext.P17 Government order as serial No. 22 with 50 seats.

6. Aggrieved by Ext.P9, the petitioner filed W.P.(C) No. WPC 19949/2012 -5- 16442/2012. But on the basis of the willingness expressed by the first respondent in the counter affidavit to consider the application, this Court directed the petitioner to file application for NOC to the first respondent within a period of five days and directed the first respondent to consider and pass appropriate order within one week. The copy of the judgment passed in W.P.(C)No.16442/2012 was marked as Ext.P15. Pursuant to Ext.P15, on the application filed by the petitioner, the first respondent passed Ext.P19 order declining the application for NOC, on the ground that the DME reported that clinical facilities are inadequate in parent hospital as well as affiliated hospitals as the Student Patient Ratio is not maintained as per Norms. According to the petitioner, Ext.P19 order is per se illegal and unsustainable in law and it is issued in blatant violation of the direction of this Court. Ext.P19 is nothing but a procured and dictated one at the instance of Secretary to the first respondent; solely for the purpose of defeating petitioner's right to get affiliation. According to the petitioner, no authority was given to the Government for conducting inspection as to clinical facilities and Student Patient ratio in the college and it WPC 19949/2012 -6- was vested with Indian Nursing Council, Kerala Nurses and Midwives Council of University etc. and it was never with the Government. Hence the petitioner prayed for as follows:

i)Call for the entire records leading to issue of Ext.P19 order issued by the 3rd respondent and quash the same by issuing a writ of certiorari or any other appropriate order or direction.

ii)Issue a writ of mandamus or any other appropriate writ or order or specific direction and thereby command the 1st respondent to allow petitioner's Ext.P16 and P17 applications submitted for enhanced seats in M.Sc.and B.Sc.Nursing courses which are already sanctioned by the INC, KNC and KUHAS,

iii)Declare that Ext.P13 is not applicable for the academic year 2012-13 and also direct the 1st respondent to refund the amount collected from the petitioner.

7. The first respondent filed a counter affidavit denying the averments in the writ petition against the first respondent. The Government has issued Ext.R1(a) Government Order to ensure standard of Nursing institution and to maintain quality of education to start courses under self financing institutions in the WPC 19949/2012 -7- Nursing education Sector and the application was proceeded and took decision in accordance with Ext.R1(a) order. The order further contemplates a process of inspection conducted by Deputy Director of Nursing Education for B.Sc.Nursing/ M.Sc.Nursing. Pursuant to Ext.P15 Judgment of this Court, the petitioner filed application and the fist respondent has directed the DME to conduct inspection in order to ascertain whether the facilities are adequate. DME has furnished Ext.R1(b) inspection report and reported that clinical facilities are inadequate in the parent hospital and affiliated hospital and student patient ratio is not maintained as per India Nursing Council Norms. Hence, DME has informed that enhancement of seats for B.Sc. Nursing course can be made only after improving the clinical facilities. According to the first respondent, total number of student is

478. The parent hospital does not have facility to provide clinical experience considering the ratio of student and patient. In affiliated hospitals students from various other institutions are also coming for clinical experience and it varies from 2 to 6. The first respondent contended that the Government has power to insist for obtaining NOC as long as conditions prescribed WPC 19949/2012 -8- under Ext.R1(a) is not inconsistent with any of the provisions of the Indian Nursing Council Act. The petitioner could not point out any inconsistency between Ext.R2(a) Government order and Indian Nursing Council Act. Moreover, Nursing Council Act is not an exhaustive Code so as to take State Government's power and rights to be exercised by virtue of Entry 25 List III Schedule IX of Indian Constitution. According to the first respondent, the objective of Indian Nursing Council Act is not to prescribe complete or exhaustive list of pre-requisite to establish, administrate and run a nursing council institution. The University Act recognises the authority of the State Government and the laws made by it and also compliance of Act or Rules passed by the State Government as a condition precedent for getting affiliation. The State Government has power to issue necessary directions and Government orders to carry out the purpose and objective of the Act still first statute is promulgated. The petitioner is duty bound to comply with conditions stipulated in Ext.R1(a) Government Order for the purpose of getting NOC. The petitioner could not challenge factual findings of Ext.R1(b) inspection report in a proceedings WPC 19949/2012 -9- under Article 226 of the Constitution of India as it is a discretionary remedy.

8. The petitioner filed a reply affidavit, inter alia, contending that Ext.R1(b) is nothing but a fraudulently obtained report solely for denying the petitioner's right to get enhanced seats and to flout Ext.P15 judgment of this Court in which this Court held that the petitioner's college has substantially complied with all the formalities except no objection certificate from the Government. The object of the Indian Nursing Council Act 1947 is to establish a uniform standard of training of nurses, mid wives and health visitors. Section 13 of the Act enables the Executive Committee of the Central Council to send Inspectors to inspect any institution recognised as a training institution. They are authorised to report regarding the suitability of the institution for the purpose of training, adequacy of infra-structure therein. The Executive Committee of the Indian Nursing Council shall forward a copy of the report so obtained to the institution concerned, the Central Government, the State Government and the State Council of Nurses & Midwives in which the institution is situated. WPC 19949/2012 -10-

9. Similarly Section 28 of the Travancore Cochin Nurses and Midwives Act, 1953 empowers the State Council to inspect and report whether the institution has adequate facilities for starting a new institution or enhancement of seats as the case may be. Section 36(c) authorises the Nursing Council to frame regulations for approval of institutions imparting training in Nursing. Therefore, the right to ascertain whether a particular institution which proposes to impart eduction in nursing is vested in Central Nursing Council and State Nursing and Midwives Council, the statutory authorities under law. There is no law made by the State of Kerala authorising the Deputy Director of Nursing Eduction to conduct inspection and to ascertain the correctness of the inspection conducted by the State Council invoking the power conferred under the Kerala University Act 10 of 1953. Ext.P10 will unambiguously prove the purpose of insisting on NOC to compel the educational institution to agree for seat sharing and fee regulation only. The insistence of NOC prohibits University from taking an independent decision. Ext.P12 circular issued by the Government in so far as it relates to the courses, which are WPC 19949/2012 -11- specifically covered by the provisions of Nursing Council Act,1947 and Nurses and Midwives Act 1963 is clearly beyond the power of the State Government. The D.M.E.has not conducted any inspection. As per Ext.P18, one Associated Professor Sulekha.A.T. and Assistant Professor Omana.M.P. conducted the alleged inspection and on the basis of such erroneous report Ext.R1(b) is prepared. Ext.R1(b) is silent as to who has prepared the report and who has conducted the inspection. Ext.R1(b) is factually incorrect and it is issued without jurisdiction and the same is prepared with mala fide intention to harass the petitioner and to deny the petitioner's right to get the enhanced seats which are prepared by all the statutory authorities under law. The allegation in the 9th paragraph of the report that total student for B.Sc.Nursing course is 240 is incorrect. In petitioner's college there are only 200 students for B.Sc.Nursing. Similarly, the number of GNM course shown in Ext.R1(b) is 140 in the petitioner's college, but the actual strength of GNM students in the petitioner's college is 71. That itself will show how casually the alleged inspection and report is prepared and the sole intention of the person who WPC 19949/2012 -12- conducted the inspection is to submit a report in such a way to deprive the petitioner's right to get enhanced seats. On the date of inspection, there were 176 inpatients in the petitioner's hospital and it is evident from the certificate issued by the Nursing Superintendent of petitioner's college. There are four affiliated hospitals for the petitioner's institution, i.e. Century Hospital, which had 103 in-patients on 13/8/2012 and the same has been duly certified by the General Manager as per Ext.P20; District Hospital, Mavelikkara had 194 patients on 13/8/2012. It has been certified by the Medical Superintendent as per Ext.P22. Another hospital by name Lifeline Hospital had 187 inpatients on 13/8/2012 which is certified as per Ext.P21. There were 213 inpatients in St.Gregorious Medical Mission Hospital, Perumala as per Ext.P23. Thus Ext.P22 and Ext.P24 will unambiguously prove that the facts stated in Ext.R1(b) report is incorrect and it is created in a fraudulent way suppressing real and true facts. In short as on 31/8/2012, there were altogether 819 inpatients in the petitioner's hospital as well as in the affiliated hospitals. The allegation that in petitioner's affiliated hospitals, students from various institutions are also coming for WPC 19949/2012 -13- clinical experience is another vague allegation in Ext.R1(b). Ext.R1(a) never stipulates any inspection by the Government or DME to ascertain whether the facilities prescribed by Indian Nursing Council, Kerala Nurses and Midwives Council and Kerala University of Health and Allied Sciences and even as per Ext.R1(a) such rights are vested with the respective statutory bodies. The statutory authorities have already conducted inspection and suggested about the facilities prescribed by the authorities. The only column to be filled in the application for enhancement of seat is "whether the facilities available for enhanced seats". Ext.R1(a) has not stated what are the facilities for enhanced seats. In the reply affidavit also, the petitioner reiterated the allegation that several institutions including Archana College of Nursing have no property or building of their own and they have no hospital and even then they are allowed to function and the first respondent is allotting students to the said college through LBS and this amounts to discrimination. To show the adequacy of sufficient property, the petitioner produced Exts.R26 and R27 possession certificates issued by the Village Officer. Ext.R28 is produced to show that WPC 19949/2012 -14- the Government of Kerala has given no objection certificate for starting medical college in the petitioner's hospital.

10. The first respondent has filed an additional counter affidavit, inter alia, contending as follows:

After filing the application as Ext.P16 under Ext.R1(a) Government Order and after issuing Ext.P19 order, the petitioner is estopped from contending that Ext.R1(a) Government Order is not applicable to him. The petitioner is bound by Ext.R1(a). The Indian Nursing Council regulations recognises permissions of State Government to start a course or to enhance seats. The allegations made in paragraph 8 and 10 of the reply affidavit is denied emphatically. There is no repugnancy between Ext.R1(a) and the Statutes governing Nursing Institutions. Overall management of the health sector in the State is vested in Government. So, the Government have to regulate colleges to ensure quality. The allegations in paragraphs 11 and 12 of the reply affidavit are also incorrect and hence denied. Simply because of the fact that Indian Nursing Council Act, 1947, the Nurses and Midwives Act, 1953 or the University Act confers certain powers on different bodies WPC 19949/2012 -15- to regulate nursing education, that by itself will not preclude the State Government from issuing appropriate statutes, executive orders or guidelines. The allegations in paragraph 12 are also denied. Ext.R1(c) is the original report on the basis of which Ext.R1(b) was prepared. While preparing report, the Inspectors have taken the sanctioned strength for B.Sc. Course as 60 instead of 50. This is because student-patient ratio has to be calculated on the basis of the enhanced seat position.

However, even if the existing sanctioned strength is taken, the total number of students in B.Sc.Nursing Course would be 200. But while calculating the strength of M.Sc.Nursing Course, it is understood that a clerical error has crept in the report. Instead of the present strength of 9, it is shown as 18 and it is only a bona fide clerical error. According to the existing sanctioned strength, petitioner's institution is having 200 students in B.Sc. Nursing Course and 9 students in M.Sc. Nursing Course. However, the existing sanctioned seats for General Nursing Course is 140, which includes 3 batches of 3 5 students and one batch of 35 students as interns. Hence the number of students as per sanctioned seats as follows:

WPC 19949/2012 -16-

     B.Sc.            50 x 4 = 200

     PB B.Sc.         40 x 2 = 80

     GNM              35 x 3 = 105

     GNM Interns                   35

     M.Sc (3 specialties)            9

                            -----------------

                                   429

Therefore, the total number of students in petitioner's college would be 429. Though, the number of students admitted in each year may be less than the sanctioned seats, inspection would be conducted only on the basis of number of sanctioned seats. The allegation that on the date of inspection, there are 176 patients in the petitioner's hospital is incorrect and is denied. Ext.P24 is a document from petitioner's hospital itself, which is created for the purpose of this case. The occupancy claimed with regard to the 4 affiliated hospitals on the date of inspection cannot be taken at its face value, since no records are available with the State Government to cross check the same. Exts.P20 to P24 are documents created for the purpose of the case and cannot be relied upon. Moreover, occupancy rate shown in Ext.P24 WPC 19949/2012 -17- cannot be successfully claimed by the petitioner's hospital. As per the records available with the Government, the following is the statistics with regard to the patients as well as the bed occupancy:

Number of bed in parent Hospital 300

Number of patients admitted on the day of inspection (13/08/2012) 167 Bed occupancy 58% Bed occupancy during July 55% Average occupancy during last year 58% The allegation that as on 31/8/2012, there were altogether 819 inpatients in the petitioner's hospital as well as the affiliated hospitals is factually incorrect and hence denied. The allegations in paragraphs 13 and 14 of the reply affidavit are not correct and hence denied. Exts.P2 to P8 recognise only the institution as such and not the petitioner personally and, therefore, the institution cannot claim any right under Article 19 of the Constitution. The allegation that the finding in Ext.R1(b) are incorrect and tainted with mala fides is absolutely incorrect and hence denied. Ext.R1(c) is the report filed by the Inspectors. WPC 19949/2012 -18-

11. The petitioner has produced Ext.P29, true copy of the circular dated 3/1/2012 which was issued by the Secretary, Indian Nursing Council. Ext.P13 is the copy of the circular dated 28/8/2012 issued by the Secretary of Indian Nursing Council. In view of the rival contentions with regard to the adequacy of infrastructure in the petitioner's hospital and the method of calculating student-patient ratio insisted by the Indian Nursing Council Regulation, we have suo motu impleaded the Indian Nursing Council as additional 6th respondent. We directed the Indian Nursing Council to file a statement clarifying the method of calculating student-patient ratio required for a Nursing College for starting as well as the enhancement of seats. The standing counsel for the Indian Nursing Council filed a statement describing the method by which student-patient ratio is to be calculated.

12. We heard Shri Peeyus A. Kottam, the learned counsel for the petitioner, Shri Roshan Alexander, the learned Government Pleader and Dr. Abraham P. Maeachinkarka, the learned Standing counsel for Indian Nursing Council. WPC 19949/2012 -19-

13. Shri Peeyus A.Kottam, inter alia reiterated that Ext.P19 order is per se illegal, unsustainable and issued in violation of the Nursing Council of India regulations. According to him, Ext.P19 is a procured one at the instance of Secretary to first respondent for the purpose of defeating petitioner's right to get NOC for enhanced seats. In view of the decision reported in Velayudhan Memorial Trust v. State of Kerala 2010(3)KLT 367(FB), he challenged the authority of the State Government to prescribe Norms inconsistent with the standards and norms stipulated by the National Council, as seen in Ext.R1(a). The prescription of standards of education, which includes prescribing appropriate syllabus, prescription of infrastructure for conducting courses and norms of training is vested with National Nursing Council. Similarly, whether a particular institution is to be recognised, having regard to the norms and standards prescribed by the National Council, is a matter to be decided by the State Council established under Kerala Act X of 1953. Thus prescription of standard and verification of availability of infrastructure are fields which are occupied by WPC 19949/2012 -20- National Nursing Council and State Nurses & Midwives Council respectively. So over and above these authorities, the State Government has no power to prescribe or verify these aspects. This is the argument advanced legally before us.

14. Next point of his argument centers around factual aspects. According to him, the petitioner's hospital has all infrastructure as per the norms of Indian Nursing Council regulations, and it is evident by Exts. P7 and P8. The certificates of approval granted by Indian Nursing Council and State Nursing and Midwives council. The counsel submitted that the inspectors to whom the Director of Nursing education delegated the verification of infrastructure absolutely went wrong in calculating the student-patient ratio. Their finding of the inadequacy of student patient-ratio is absolutely wrong. On the date of inspection, the parent hospital as well as the affiliated hospitals had 819 inpatients and it is evident by Ext.P20 to P24 certificates. The Inspectors went wrong in calculating the number of students for M.Sc. Nursing a basic thing, which is admitted as error and corrected in the additional counter affidavit only. According to the learned WPC 19949/2012 -21- counsel, the Inspector went wrong by reckoning total students of all courses of all the three years for fixing the ratio, instead of reckoning total number of first year students only. Even according to the counter affidavit of the first respondent and Ext.R1(c), the total number of students in first year, for all courses including enhanced seat, is only 179. Therefore, to maintain student-patient ratio a s per the norms 1:3, 537 inpatient is sufficient.

15. In addition to the above legal as well as factual contentions, the learned counsel advanced arguments raising allegations against Shri Rajeev Sadanandan, Principal Secretary to Government, who issued Ext.P13 letter requesting University, Kerala Nurses and Midwives Council to conduct inspection and to take necessary action to withdraw approval of M.Sc.Nursing course for the next academic year. According to the counsel, he is making all possible hurdles to deny the petitioner's right to get seats enhanced. It is also submitted that he has issued no objection certificates to certain other institutions in the locality,who have neither property and building nor hospitals of their own.

WPC 19949/2012 -22-

16. Per contra, against the legal point, the learned Government Pleader submitted that the petitioner is estopped from challenging Ext.R1(a) Government Order, after having accepted it and applied as per Ext.R1(a). Secondly, there is no prayer in the writ petition to quash either Ext.R1(a) Government Order or any of the provisions in Ext.R1(a) allegedly inconsistent with Indian Nursing Council Regulations. The Indian Nursing Council Act, recognizes the authority of the State Government and laws made by it and also prescribes compliance of Acts or Rules passed by the State Government as a condition precedent for getting affiliation under University. The State has power to issue necessary directions to the University to carry out the purpose and objectives of the Act, till first statutes are promulgated. Therefore, the challenge against Ext.R1(a) is liable to be rejected.

17. The learned Government Pleader contended that even going by the decision reported in Velayudhan Memorial Trust v. State of Kerala(2010(3)KLT 367), the Government has power to prescribe norms for NOC. He further referred para. 3 of Ext.P8 proceedings of approval issued by the Kerala Nurses WPC 19949/2012 -23- and Midwives Council. It is specifically stated in Ext.P8 that Management should strictly follow the guidelines of the Government of Kerala. With respect to inadequacy of student- patient ratio, the learned Government Pleader submitted that Ext.R1(c) is the original report on the basis of which Ext.R1(b) was prepared. While preparing the report, the inspectors have taken sanctioned strength for B.Sc.course as 60 instead of 50. Student-patient ratio has to be calculated on the basis of enhanced seats. It is admitted that while calculating a clerical error has crept in the report, instead of present strength of 9, it is shown as 18. It was a bona fide mistake only. The number of total students of all courses for the 4 years is 429. So to maintain student patient ratio 1:3, as per norms, 1287 inpatients are required. Total number of inpatients in the parent hospital on 13-80-2012, the date of inspection is 167. The occupancy claimed with regard to 4 affiliated hospitals on the date of inspection cannot be taken at its face value, since no records are available with the State Government to cross check the same and Exts.P20 to P24 cannot be relied upon. Occupancy rates shown in Exts.P20 to P24 cannot be exclusively claimed by the WPC 19949/2012 -24- petitioner's hospital as 2 to 16, other institutions are also availing very same facility.

18. The learned Government Pleader submits that the allegation that the findings in Ext.R1(b) are incorrect and tainted with mala fides is absolutely incorrect.

19. We have given our anxious considerations to the rival submissions made by the counsel for the parties. Firstly, we will deal with the challenge against Ext.R1(a). The learned counsel for the petitioner attacked Ext.R1(a) contending that certain provisions are inconsistent with Indian Nursing council Regulations and vehemently argued that Government has no power to conduct a further inspection to verify the infrastructure facilities and norms of training, when the statutory authorities under Indian Nursing council Act and Kerala Nursing and Midwives Council granted approval for enhancement of seats, after inspection. But as rightly pointed out by the learned Government Pleader, even in this second round of litigation, there is no prayer in this writ petition to quash either Ext.R1(a) as such or any of the provisions in Ext.R1(a) allegedly WPC 19949/2012 -25- inconsistent with statutory norms. Therefore, so long as Ext.R1

(a) stands valid, the petitioner's college is bound to abide norms and conditions stipulated in Ext.R1(a). Moreover the petitioner has submitted application in adherence to Ext.R1(a) and consequently suffered Ext.P19 order. Thereafter, it is not proper to question the authority or inconsistency of Ext.R1(a) without seeking a prayer to quash Ext.R1(a). Therefore, we are not inclined to examine either the legal validity of Ext.R1(a) or the inconsistency of any of the provisions , which allegedly stands against norms prescribed by statutory authorities in this writ petition, according to the petitioner.

20. The second issue is with respect to inadequacy of the clinical facility and failure to maintain student-patient ratio as per the norms 1:3, the reasons for which the application for NOC has been rejected by the first respondent. The question is whether the petitioner's institution has adequate clinical facilities and maintenance of student-patient ratio as per the norms. Though, apparently, it appears to be a factual issue, the rival contentions give rise to a legal perspective also.

21. In the counter affidavit, it is admitted that Ext.R1) is WPC 19949/2012 -26- the original report on the basis of which Ext.R1(b) was prepared. In Ext.R1(c) under the heading of clinical facilities, it is stated that occupancy of the parent hospital during the last year was 58%. But Ext.R1(c) does not state the occupancy rate of the 4 affiliated hospitals. In the counter affidavit, first respondent admitted that Government has power to insist for obtaining NOC as long as conditions prescribed under Ext.R1(a) is not inconsistent with any of the provisions of the Indian Nursing Council Act. Thus the first respondent has also admitted the supremacy of the Indian Nursing Council in the matter of prescribing norms of infrastructure, standard of facility and norms of training.

22. Clause 21 of Ext.P29, Indian Nursing Council Regulations, deals with clinical facilities which reads as follows:

"The clinical facilities break up in detail is placed below:

CLINICAL FACILITIES School/college of nursing school have a 120-150 bedded parent/Affiliated Hospital for 40 annual intake in each programme:

I. Distribution of beds in different areas 1. Medical 30 2. Surgical 30 WPC 19949/2012 -27-

3. Obst.& Gynaecology 30 4. Paediatrics 20 Ortho 10 II. Bed occupancy of the hospital should be minimum 75%."

Going through the above clause, it could be seen that certainly in the matter of determining student-patient ratio and bed occupancy, inpatients of affiliated hospital can be taken into account. The above view is supported by statement filed by Indian Nursing Council also. But the Inspectors, who prepared Ext.R1(c ) failed to consider bed occupancy of the affiliated hospitals also, as per the norms of Nursing Council Regulation.

23. Secondly, as regards to inadequacy of student-patient ratio as per the norms 1:3, the petitioner claims that his hospital as well as affiliated hospitals had 819 inpatients as on 31-8- 2012, the date of inspection. He has produced Exts.P20 to P24 certificates to prove that these hospitals had respective number of inpatients maintained thereon as on 31/8/2012. As we have found earlier that as per the Nursing Council Regulations, number of patients in the affiliated hospital also can be taken into account for reckoning bed occupancy. In Ext.R1(c) WPC 19949/2012 -28- inspection report, it is stated that 167 patients were present in the parent hospital as on 31/8/2012; but Ext.R1(c) does not mention the number of inpatients present in the affiliated hospitals on 31/8/2012. Going by Ext.R1(c), it is not possible to believe that they inspected the affiliated hospitals, since the report itself does not claim that the Inspectors have inspected the affiliated hospitals and verified the number of inpatients. In the counter affidavit, the first respondent stated that the occupancy claimed by the petitioner with regard to the 4 affiliated hospitals on the date of inspection cannot be taken at its face value, since no records are available with the State Government to cross check the same. This itself amounts to an admission that they have not taken the facilities of the affiliated hospitals in reckoning the student-patient ratio. It appears that the inspectors have simply discarded the affiliated hospitals, stating that 2 to 16 other Nursing institutions are affiliated to these specialty hospitals. Going by Ext.R1( c) it could be seen that 16 institutions are affiliated to, one hospital which is specialized in cardiology and Cardio Thorasic surgery and all other hospitals have not more than 5 affiliations. WPC 19949/2012 -29-

24. So long as Nursing Council Regulation permits reckoning of inpatients in the affiliated hospitals also in the matter of bed occupancy and student-patient ratio, the inspectors who conducted inspection, ought to have taken these aspects also into account as in the case of other institutions, for which Ist respondent granted NOC.

25. Another aspect to be considered is according to clause II of Ext.R1(a) inspection on application for B.Sc.Nursing course is vested with Deputy Directors of Nursing. But it is seen that the Deputy Director of Nursing, instead of inspecting himself, delegated two other Assistant Professors. The first respondent in the counter affidavit emphasised the need and responsibility of the State Government to keep standard of Nursing Education, over and above the responsibility of statutory authorities. If that be so, such an inspection should have been done by the Deputy Director of Nursing Education himself and he should not have delegated it to others. We have already found that Ext.R1(c) discarded the inpatients of affiliated hospitals, as regards to bed occupancy . The WPC 19949/2012 -30- petitioner claims that as on 31/8/2012, parent hospital as well as affiliated hospitals had 819 inpatients. In the counter affidavit, the first respondent admitted that the parent hospital had as on 31/8/2012, 167 inpatients. The counsel for the petitioner submitted that there were sufficient number of inpatients in the affiliated hospitals so as to maintain ratio 1:3. We are not inclined to believe Exts.P20 to P24 as such, without further verification for determining bed occupancy.

26. Let us examine the method by which student-inpatient ratio was calculated by the first respondent. The learned Government Pleader submitted that in the petitioner's institution, total number of students of all courses for the 3 years is 429. So inpatient number must be three times of 429 students. In short, total number of students in the institution for all courses must be taken into account to find out total inpatient required to maintain ratio 1: 3 as per the norms of Indian Nursing Council. Per contra, the counsel for the petitioner vehemently opposed the above method of reckoning ratio and submitted that total number of students of Ist year course alone need be taken to determine the ratio. The method of calculating WPC 19949/2012 -31- student-patient ratio does not find a place in the Nursing Council Regulation. In the above circumstances, we have suo- motu impleaded Nursing Council of India as additional 6th respondent and directed to file a statement explaining as to method by which the student-patient ratio is to be calculated. The standing counsel for Nursing council of India filed a statement which reads as follows:

"The college of Nursing should have 120-150 bedded parent/affiliated hospital for 40 annual intakes in each programme. Student-patient ratio should be 1:3. If the institution is having both G.N.M(General Nursing & Midwifery 3= years Course) and 4 years B.Sc.(Nursing) programme, it would require 240 bedded parent/affiliated hospital for 40 annual intake in each programme to maintain 1:3 student-patient ratio. Bed occupancy of the hospital should be minimum 75%.

The size of hospital/nursing home for affiliation should not be less than 50 beds an should be in the radius of 15-30 kms. Affiliation of psychiatric hospital should be of minimum 30-50 beds.

Criteria of student-patient ratio of 1:3 are only for the 1st year admission only. If there are 160 students for all the four year B.S.Nursing course in a Nursing WPC 19949/2012 -32- College, still the minimum bed required is 120-150 only i.e. number of beds is not to be increased with the addition of students year by year."

27. The learned standing counsel relying on the above statement submitted that for reckoning the bed occupancy and student-patient ratio, affiliated hospitals also can be taken into account. He further submitted that criteria of student-patient ratio of 1:3 is only for the Ist year admission only. In short, number of beds is not to be increased with addition of students year by year.

28. We have already found that the first respondent in the counter affidavit admitted that terms of Ext.R1(a) is valid and enforceable so long as it stands consistent with Nursing Council Regulation only. So, we accept the explanation given by the Indian Nursing Council. When applying this method of calculation, total number of first year student according to Ext.R1(c) inspection report itself is 179. So the required number of inpatients to maintain student-patient ratio is only 537. In the counter affidavit, first respondent admitted that at the time of inspection, there were 167 inpatients in the parent hospital. The WPC 19949/2012 -33- learned counsel for the petitioner submitted that total number of inpatients as on 31/8/2012 is 819, which is evident from EXts.P20 to P24. So, 370 inpatients are required to maintain 1:3 ratio. 652 inpatients were admitted in the hospital as on 31/8/2012. But the Inspectors have not taken these inpatients in the affiliated hospitals for reckoning the ratio 1:3.

29. But we are not inclined to accept Exts.P20 to P24 without further verification for the determination of student- patient ratio. We find that Ext.R1( c) is not reliable in the matter of student-patient ratio also, though Ext.R1(c) does not say anything about the method by which they determined the student-patient ratio.

30. The petitioner has raised serious allegations against the Secretary to Government and it is specifically alleged that the first respondent has issued No Objection Certificates to certain other institutions in the locality who have neither proper property and building nor hospital of their own. According to the petitioner, the attitude of the first respondent is discriminatory. However, at present we are not going to embark upon an enquiry on these allegations of alleged WPC 19949/2012 -34- discriminatory attitude.

31. We have already found that Ext.R1(c) is one which is not prepared in accordance with Ext.P29 regulations of Nursing Council of India. The statement filed by the Nursing Council of India fortifies the above view. Consequently, Ext.P19 decision taken by the first respondent on the basis of Ext.R1(b) report of the D.M.E. which was prepared on the basis of Ext.R1(c) inspection report is vitiated by procedural impropriety. In Chief Constable of North Wales Police v. Evans [1982(3)All.E.R.141], Lord Brightman said: Judicial Review as the words imply, is not an appeal from a decision, but review of the manner in which decision was taken. In Tata Cellular v. Union of India [ (1994)6 S.C.C. 651], the Supreme Court held that broad grounds of Judicial review are illegality, irrationality and procedural impropriety. Relying on the decision reported in R v. Tower Hamlets London Borough Council, ex.p.Chetnik Developments Ltd.[(1988) 1 All E.R.961, the Supreme Court quoted Wednesbury Principle for judicial interference, which reads as follows:

WPC 19949/2012 -35-

"Wednesbuury Principle.- A decision of a public authority will be liable to be quashed or otherwise dealt with by an appropriate order in judicial review proceedings where the court concludes that the decision is such that no authority properly directing itself on the relevant law and acting reasonably could have reached it. (Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn., per Lord Greene, M.R.)".

In the above decision the Apex Court has observed the facet of "irrationality as follows".

"It is open to the court to review the decision-maker's evaluation of the facts. The court will intervene where the facts taken as a whole could not logically warrant the conclusion of the decision-maker . If the weight of facts pointing to one course of action is overwhelming, then a decision the other way, cannot be upheld.

32. Therefore, we find that the first respondent has wrongly exercised the discretion conferred upon it by Ext.R1(a) Government Order as well as Indian Nursing Council Regulation. The first respondent has ignored relevant WPC 19949/2012 -36- consideration and exercised powers in such a manner as to frustrate the object of conferring such a discretion.

33. In the decision reported in Comptroller and Auditor General of India v. K.S.Jaganathan(1986(2)SC 679), the Supreme Court held that:

"20. There is thus no doubt that the High Courts in India exercising their jurisdiction under Article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the Government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the Government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. In all such cases and in any other fit and proper case a High Court can, in the exercise of its jurisdiction under Article 226, issue a writ of mandamus or a writ in the nature of mandamus or WPC 19949/2012 -37- pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the Government or a public authority, and in a proper case, in order to prevent injustice resulting to the concerned parties, the court may itself pass an order or give directions which the Government or the public authority should have passed or given had it properly and lawfully exercised its discretion."

34. In such a situation in the light of the above decisions, we are inclined to set aside Ext.P19 and issue writ in the nature of mandamus against the first respondent to compel the performance in a proper and lawful manner of the discretion conferred upon the first respondent after taking all relevant considerations into account.

35. Therefore, in the instant case, the only way open to us is to quash Ext.P19 and direct the first respondent to take a fresh decision, after obtaining a correct inspection report from the Deputy Director of Nursing Education as to average bed occupancy and student-patient ratio found available in the parent hospitals and affiliated hospitals as on 31-8-2012 as per WPC 19949/2012 -38- the records, as per the method of reckoning these facilities which is detailed in the statement filed by the Indian Nursing Council, and quoted as such in this judgment.

36. In the result

(i) Ext.P19 is quashed.

(ii) The first respondent is directed to obtain a correct report forthwith from the Deputy Director of Nursing Education as to bed-occupancy (75%) and student- patient ratio found available in the parent hospital and all affiliated hospitals as per the records as on 31-8-2012, as per the Indian Nursing Council Regulations and the method of reckoning these facilities detailed by the Nursing Council of India in the statement filed in this writ petition and quoted us in this judgment. Deputy Director of Nursing Education shall not delegate power of inspection to any other officer under him.

WPC 19949/2012 -39-

(iii) On receipt of the report, the first respondent shall take a fresh decision on the petitioner's application for NOC on the basis of that report within one week.

Entire process will be done within 10 days from today.

K.M. JOSEPH, JUDGE K. HARILAL ,JUDGE ks.

WPC 19949/2012 -40- WPC 19949/2012 -41-

K.M. JOSEPH & K. HARILAL JJ.

===================== W.P.(C)No. 19949 of 2012 ===================== Dated this the 11th day of Sptember 2012 ORDER K.M.Joseph,J.

The writ petition is filed challenging Ex.P19. By the impugned order, the request for enhancement of seats has been declined on the ground that the D.M.E. reported that clinical facilities are inadequate in the parent hospital as well as in affiliated hospital and student patient ratio is not maintained as per norms.

2. Additional counter affidavit was filed therein the WPC 19949/2012 -42- inspection report also filed, Ext.R1(c). No doubt reference was made to the main affiliated institutions. It contained reference also the number of students in the petitioners colleges to the sending college. In the conclusion portion what is stated is inter alia that parent hospital does not have adequate clinical facility to provide clinical experience of various posts of students. It is further found that parent institution is not able to maintain student patient ratio 1:3. It is also stated that many other institutions are sending students to the affiliated institutions. Ext.R1(c) is a report by an Associate Professor and Assistant Professor apparently deputed by the Deputy Director instead of conducting the inspection by himself.

3. We heard the learned counsel for the parties and the learned Government Pleader.

4. According to the learned Government Pleader, in view of the conclusion that many other institutions are also sending students to the affiliated institutions, it may not be possible to find that with the help of the parent and WPC 19949/2012 -43- affiliated institutions, the required student patient ratio and the average occupancy ratio as required under law is satisfied. It is pointed out to us that necessary information is available with the Deputy Director, submits by the learned counsel for the University.

5. In such circumstances, we direct the learned Government Pleader to get specific instruction as to whether even if there are other institutions sending students to the affiliated hospitals mentioned in Ext.R1(c), the criteria for granting enhancement sought by the petitioner are fulfilled.

Handover to all parties. Post on 12/09/2012.

K.M. JOSEPH, JUDGE K. HARILAL , JUDGE ks.

WPC 19949/2012 -44-

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