Lisie College of Nursing Lisie Hospital v. State of Kerala, Indian Nursing Council, Kerala Nurses and Midwives Council, Kerala University of Health Sciences

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** ## **&** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **TUESDAY, THE 21[ST] DAY OF DECEMBER 2021 / 30TH AGRAHAYANA, 1943 WA NO. 1538 OF 2021** **AGAINST THE JUDGMENT IN WP(C) 16052/2021 OF HIGH COURT OF KERALA** ## **APPELLANTS:** **LISIE COLLEGE OF NURSING LISIE HOSPITAL, PB.NO.3053, COCHIN-682018, ERNAKULAM DISTRICT, REPRESENTED BY ITS CHIEF EXECUTIVE TRUSTEE. BY ADVS. GEORGE POONTHOTTAM (SR.) NISHA GEORGE** ## **RESPONDENTS:** - **1 THE STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 THE INDIAN NURSING COUNCIL, COMBINED COUNCILS BUILDING, KOTLA ROAD, TEMPLE LANE, OPP.MATA SUNDRI COLLEGE, NEAR I.T.O, NEW DELHI-110002.** - **3 KERALA NURSES AND MIDWIVES COUNCIL, RED CROSS ROAD, JAI VIHAR, KUNNUKUZHY, THIRUVANANTHAPURAM-695035, REPRESENTED BY ITS REGISTRAR.** - **4 THE KERALA UNIVERSITY OF HEALTH SCIENCES, MULANGUNNATHUKAVU, MEDICAL COLLEGE P.O., THRISSUR-680596, REPRESENTED BY ITS REGISTRAR. BY ADVS. SHRI.P.SREEKUMAR, SC, FOR R4 DR.ABRAHAM P.MEACHINKARA,SC, FOR R2 SRI.N.RAGHURAJ, STANDING COUNSEL FOR R3 SRI.K.B.RAMANAND, SPECIAL GOVERNMENT PLEADER FOR R1** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 21.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.A.No.1538 of 2021 2 ## **JUDGMENT** ## **SHAJI P.CHALY,J.** Petitioner in W.P.(C) No.16052 of 2021 has filed this appeal, challenging the judgement of the learned Single Judge dated 12.11.2021. The challenge in the writ petition was to Exhibits P19 &20 order and communication dated 30.6.2021 respectively, issued by the Kerala Nurses and Midwives Council, Thiruvananthapuram, whereby sanction is accorded to the Principal of the appellant college for the admission of B.Sc Nursing programme with an annual intake of 40 students during the academic year 2021, thus reducing the total number of seats from 70 to 40, and directing the appellant to rectify the deficiencies and submit compliance report within one month from the date of receipt of the communication respectively. 2. Brief material facts for the disposal of the writ appeal are as follows; appellant is a Nursing College, conducting courses in Nursing from 2002 and has 750 bedded fully equipped hospital with almost 100% inpatient strength; that approval from the Indian Nursing Council (INC), recognition from the Kerala W.A.No.1538 of 2021 3 Nursing and Midwives Council (KNMC), affiliation from Health University were given each year, after assessing facilities and infrastructure by carrying out annual inspections; even though Post Basic B.Sc and M.Sc Nursing programmes were conducted along with B.Sc Nursing courses, the same were discontinued leaving resources open for more seats in B.Sc Nursing. 3. According to the appellant, due to the cold war between the Government and private colleges, whose organisation is headed by the appellant, efforts were made to cut the intake in B.Sc Nursing courses so as to pressurise the management to toe the Government; that intake in B.Sc Nursing was increased on the condition that the seats in General Nursing were reduced from 50 to 30; that thereafter, seats were increased from 50 to 70 in B.Sc Nursing in 2019; however, as per Exhibit P19 and Exhibit P20 orders, on considering Exhibit P18 application for continuation of affiliation for the year 2021-2022, the intake was reduced from 70 to 40 and the reason stated for reduction of seats is that the college is old and congested. 4. It is also the case of the appellant that no specific aspects with regard to the defects were given and it was not informed which guideline of the Indian Nursing Council was violated by the appellant. That apart it is contended that Exhibit P20 order is not a reasoned order and is per se arbitrary and illegal; that W.A.No.1538 of 2021 4 Exhibit P20 order notifying defects and Exhibit P19 order granting recognition for the year 2021-2022 reducing intake were served together; that in Exhibit P20 communication, vague statements with regard to the space and age of the college building were made without, enclosing copies of inspection reports, the details of the measurement made by the Inspectors of the facilities, and explaining how the appellant college fell short of the requirements. It is the specific case of the appellant that the appellant has satisfied all provisions of Exhibit P26 guidelines of the Indian Nursing Council and therefore, is eligible for the maximum number of seats. 5. The Kerala Nursing & Midwives Council – 3[rd] respondent, has filed a detailed counter affidavit in the writ petition inter alia contending that, Exhibit P19 impugned order was issued in pursuance to a resolution of the 3[rd] respondent Council dated 29.6.2021 whereby sanction was accorded to the appellant college for making admission to the B.Sc Nursing programme with an annual intake of 40 students during the academic year 2021-2022 in exercise of the powers conferred under section 26 of the Nurses & Midwives Act, 1953, hereinafter called, “Act, 1953”, and the provisions of the Rules thereunder. 6. It is further submitted that section 27 of the Act, 1953 provides for an appeal before the Government against the impugned decision and the appellant W.A.No.1538 of 2021 5 has not pleaded any exceptional circumstances enabling it to invoke the extraordinary discretionary jurisdiction of this Court conferred under Article 226 of the Constitution of India and is liable to be rejected at the threshold itself. That apart, it is submitted that the appellant college was originally accorded permission by the 3[rd] respondent to conduct B.Sc Nursing courses with an intake of 50 students but subsequently, appellant submitted an application seeking to enhance intake of seats for the subject course from 50 to 70 and as per Exhibit P5 order dated 26/9/2019, the 3[rd] respondent Council accorded sanction to the appellant college for admission to B.Sc Nursing programme with an intake of 70 students during the academic year 2019-2021, subject to the condition that the college should stop General Nursing & Midwives Programme or reduce the number of General Nursing & Midwives seats from 50 to 30 seats per annum from the academic year 2019-2020. 7. It is also stated, Exhibit P5 stipulated that the appellant college should strictly follow the guidelines issued by the Government and the University for conducting Nursing Programme apart from the norms prescribed by the Indian Nursing Council and the State Council- 2[nd] & 3[rd] respondents, and further that, the management should obtain separate order from the 3[rd] respondent Council to admit the next batch of students during the academic year 2020-2021. It is also W.A.No.1538 of 2021 6 the specific case of the 3[rd] respondent that the Council had issued Exhibit P6 letter dated 26.9.2019 to the appellant college to rectify the defects pointed out therein, which would clearly indicate that the sanction accorded as per Exhibit P5 order was only conditional; that one among the defects pointed out in Exhibit P6 was regarding inadequacy of the facility for students in the hostel provided by appellant college; that Exhibit P6 and other communications issued by the 3[rd] respondent Council in this regard would disapprove the claim of the appellant college that they have specified all the norms laid down by the respondents 1 to 3 through various orders/guidelines for conducting B.Sc Nursing programmes. 8. It is further submitted, it is evident from Exhibit P6 that the Scrutiny Committee appointed by the 3[rd] respondent Council had submitted a report on 17.9.2019 pointing out certain serious shortcomings in the facilities provided by the appellant college pursuant to their inspection held on 4.9.2019, which was duly intimated; that in response to the same, appellant college submitted a compliance report dated 10.10.2019 claiming to have rectified all the defects pointed out by the Scrutiny Committee; that thereafter, the Inspectors deputed by the 3[rd] respondent Council again inspected the appellant college and submitted a report on 6.11.2019, which again revealed that some of the defects pointed out earlier were not rectified; that one among the material defects pointed out by the said W.A.No.1538 of 2021 7 committee is that, the extent of land set apart for the appellant college within the compound of the other Lisie Medical institutions is grossly inadequate; that the hostel facilities provided by the appellant college was also found to be highly unsatisfactory; that in the light of the aforementioned report, the appellant college was required by the Council as per Exhibit P8 letter dated 19.12.2019 to rectify the defects and to report; that Exhibit P8 would vouch for the fact that appellant college was clearly alerted of the shortcomings in the facilities provided by them for conducting B.Sc Nursing programme with an intake of 70 seats in their present premises. 9. It is the further contention of the 3[rd] respondent that in response to Exhibit P8 letter, appellant college submitted Exhibit P9 reply dated 3.1.2020 inter alia stating that the building provided by it for the Nursing Programme is having sufficient plinth area in terms of the guidelines laid down by the 2[nd] respondent - Indian Nursing Council; that the crucial defect pointed out by the 3[rd] respondent Council with respect to the extent of land, which is to be mandatorily provided in terms of the orders issued by the State Government and the revised guidelines/norms issued by the Indian Nursing Council was conveniently ignored by the appellant through an evasive reply in the nature of Exhibit P9. 10. It is further contended that the State Government as early as in 2012 W.A.No.1538 of 2021 8 had clearly laid down Exhibit R3(a) guidelines/norms granting permission for starting Nursing College/School in the State and also for enhancement of intake in the number of students in such colleges/schools; however, appellant college was granted letter of permission/NOC earlier and requisite permissions from the Indian Nursing Council and the State Nursing Council thereafter in terms of the provisions of paragraph 6 of Exhibit R3(a) guidelines and therefore, it is the contention of the State Nursing Council that the provisions of the said Government Order fixing the guidelines is binding on the appellant college in all respects. 11. It is further submitted that among other stipulations for starting Nursing Programme under the Self Financing sector, an applicant should have minimum 3 acres of land in ownership & possession for the exclusive use of the college and insofar as urban areas are concerned, the said stipulation is slightly relaxed by splitting the area earmarked for the college into two plots which shall not be more than 10 Kms. apart; that the guidelines/norms issued by Indian Nursing Council also mandates the necessity of having a specified extent of land for the college apart from its building. Therefore, the defect with respect to the gross shortage in the extent of land which was being repeatedly pointed out by the 3[rd] respondent council was deliberately ignored by the appellant by giving evasive replies; that apart it is submitted, though due to COVID-19 pandemic, inspections were stopped W.A.No.1538 of 2021 9 for the time being, the State Government directed the 3[rd] respondent Council to take a decision in granting affiliation to the colleges in nursing without conducting physical inspection. It is in the above backdrop the 3[rd] respondent Council resolved to grant conditional affiliation to the appellant college for B.Sc Nursing during the academic year 2020- 2021 with an intake of 70 students as per Exhibit P17 order. However, in connection with the grant of sanction for 2021-2022 admission, the appellant college was inspected by the Inspectors appointed by the 3[rd] respondent on 19.3.2021 and subsequently, a surprise inspection was also conducted on 25.6.2021 by the Inspectors appointed for the purpose by the 3[rd] respondent Council; the said Inspectors, on physical verification of the appellant college came across the fact that the college is actually situated in a property having an extent of less than 50 cents which is less than 1/6[th] of the actual area required for a Nursing College in terms of Exhibit R3(a) Government Order, and therefore violative of the norms prescribed by the Indian Nursing Council as well. 12. It is also contended that the Assistant Executive Trustee of Lisie Medical & Educational Institutions, Ernakulam, had given an affidavit in March, 2021 to the State Nursing Council conveying that an extent of 214.1 cents of land in various survey numbers covered by lease deed has been earmarked for the Lisie College of Nursing, evident from Exhibit R3(b). However, on inspection, it was found that the W.A.No.1538 of 2021 10 appellant college is actually allotted around 46 cents of land in Sy.No.358/3 and 358/2 and therefore, it was obvious that the appellant college was trying to mislead the 3[rd] respondent Council by providing false information regarding the extent of land. Considering the extremely serious misrepresentation of material facts made by the college authorities, the Inspectors submitted their report recommending to withhold the annual affiliation of the college, and further to take legal action against the management, evident from Exhibit R3(c). 13. It is also the contention of the State Council that the Scrutiny Committee of the Council, which verified Exhibit R3(c) report on 1.6.2021 reported five other deficiencies in the facilities provided in the appellant college and placed the same before the State Council on 18.6.2021 and 29.6.2021 and the Council, after due deliberations on Exhibit R3(c) report, issued Exhibit P20 letter requiring the appellant college to rectify the deficiencies pointed out therein and also issued sanction order for the admission of the B.Sc Nursing programme with a lesser intake of 40 students for the academic year 2021-2022. 14. The sum and substance of the contention put forth by the State Nursing Council is that it was on the basis of the necessary statistics, and on finding that there is gross violation of guidelines issued by the State Nursing Council as well as regulations of Indian Nursing Council the Council decided to reduce the intake for W.A.No.1538 of 2021 11 the academic year 2021-2022, to 40 seats. 15. A reply affidavit is filed by the appellant refuting the allegations contained in the counter affidavit of the State Nursing Council and reiterating the stand adopted in the writ petition. It has also furnished the lease deed executed by and between the Archdiocese of Ernakulam with the Lisie Medical & Educational Institution, a registered trust, the regulations issued by the Indian Nursing Council dated 5[th] July, 2021 and certain other communications issued by the State Nursing Council etc. 16. The learned Single Judge, after taking into account rival submissions made by the parties and the available materials on record including the guidelines and regulations issued by the respective counsel and taking into account the principles of law evolved in judgments in **Cholan Roadways Ltd. v. Thirugnanasambandam** [(2005) 3 SCC 241], **Indian Railway Construction Company Ltd. v. Ajay Kumar** [(2003) 4 SCC 579], **MCI v.Chairman, S.R.Educational and Charitable Trust** [ 2018 SCC Online 2276], **National Medical Education Charitable Trust v. Kerala Nursing and Midwifery Council** [2006(3)KLT 612], **K.Velayudhan Memorial Trust v. State of Kerala and Others** [2010(3)KLT 367 (FB)] and **Principal Upasana Hospital for Health Allied Sciences, Mulamkunnathukavu** [2010(4)KLT 318] rendered by W.A.No.1538 of 2021 12 ## the Apex Court and this Court, held as follows: “41. Thus there cannot be any doubt that the law as settled by this Court is that the role of the Central Nursing Council is limited to approval of the Qualification, Syllabus, Norms for Training etc and in so far as the infrastructural facilities are concerned, it is for the State Council to fix the criteria. In that view of the matter, the petitioner cannot be heard to contend that the KNMC have no authority to insist that for an enhanced intake, the petitioner should satisfy the criteria as to minimum area of land as provided in Ext.R3 (a). 42. The alternate contention advanced by the learned counsel is that the petitioner is in possession of enough extent of land as stipulated in Exhibit R3(a). When it comes to this question, the Exhibit R3(c) report placed on record by the KNMC is of some relevance. The Assessors who had visited the Nursing College have reported that the building wherein the College of Nursing is being run, was constructed in the 1970’s and that the building is situated in just 48 cents of land. A sketch appended to the report reveals that the building is surrounded on three sides by the Parent Hospital Building and the road on the other side. 43. Exhibit R3(b) is the affidavit filed by the Assistant Executive Trustee asserting that property having an extent of 214.1 cents in Sy. No. 357/5(46 cents), 358/1( 72 cents), 357/1(50 cents), 358/3 (24.1 cents) 358/2 (22 cents) have been earmarked for Lisie College of Nursing. It is also stated that the Lisie College of Nursing Building in Corporation No. 36/935 has been constructed on the above land. It is further stated that Lisie Hospital Residential Block Building No.36/1003A, B, C, D (New No. 64/800,801,802 & 803) has been constructed in Sy No. 362/2 (48.5 cents) of Ernakulam Village and an area of 40,000 square feet in five W.A.No.1538 of 2021 13 floors of the Lisie Hospital Residential Block Building is earmarked for the B.Sc Nursing and General Nursing Students. 44. Exhibit P25 is the lease deed relied on by the petitioner to substantiate that the College of Nursing has ample land than is required for its functioning. I find that the lease deed executed in the year 2001 by the ArchDiocese of Ernakulam was for leasing out a total extent of 577.832 cents in various survey numbers for the purpose of establishing a Medical College, Para Medical College and allied Medical and Educational Institutions. The lease deed would not show that the requisite amount of land is available at the disposal of the College of Nursing. 45. By Exhibit P8 issued on 19/12/2019, the KNMC had informed the petitioner in unequivocal terms that the space earmarked for the College of Nursing was thoroughly deficient. Furthermore, in Exhibit P29 certificate of fitness issued by Fr.Joseph Makothakat, it is stated that the building for Lisie College of Nursing having building No.36/935 with ground floor plus Four Stories is situated in Sy. No.358/3 adjacent to Lisie Hospital Premises. For reasons best known to the petitioner, they have produced Exhibit P32 fitness certificate issued by the very same Executive Trustee wherein it is stated that the building for Lisie College of Nursing having building No. 36/935 with ground floor plus Four Stories is situated in Sy Nos.357/5, 358/1, 357/1,358/3 and 358/2 and the same is situated adjacent to Lisie Hospital Premises. Sri.Raghuraj has taken a contention that Exhibit P29 reveals the true state of affairs and it was when the petitioner felt that Exhibit P29 would cut the root of their version that they have come up with Exhibit P32. In order to substantiate his version, Sri. Raghuraj has also handed over copies of the Google Map snapshots pointing exactly where the Nursing College is situated among the maze of buildings comprising various institutions of W.A.No.1538 of 2021 14 ## Lisie Medical and Educational Institutions. 46. It is at this juncture, the relevance of Exhibit P20 issued by the Registrar, KNMC assumes some importance. To enable the petitioner to substantiate that they have sufficient area of land for the purpose of having additional intake, the petitioner was directed to produce copies of building tax for the past few 3 years, copy of building plan approved by the concerned authority, Fire and Safety Certificate, copies of land deed etc. Instead of producing the documents sought for, the petitioner has produced Exhibit P29 Certificate of Fitness issued by their own Construction Coordinator and a Fire safety Certificate Prepared by a Private Agency. The specific assertion by the learned counsel appearing for the 3rd respondent is that the documents made available by the petitioner are self-serving documents and the same cannot be relied upon for an enhanced intake. Having anxiously considered the above documents, I find that Exhibit R3 (c) report of the inspecting team cannot be lightly ignored particularly when the petitioner has failed to place on record convincing documents to show that substantial portion of the property leased out on the strength of Exhibit P25 is being used for the purpose of the Nursing School. As held by the Hon’ble Supreme Court in **Medical Council of India Vs Kalinga Institute of Medical Sciences ( KIMS) & Ors** ((2016) 11 SCC ) this Court cannot sit in appeal over the report of the committee of the assessors. Having gone through the entire records, I am not persuaded to disbelieve the assessors when they assert that the infrastructure and amenities are such that the petitioner cannot be recommended for a higher intake. The fact that the petitioner has been accommodating a larger number of students in the Nursing College in previous years is no reason to enable them to carry on with the same. I also find that the petitioner W.A.No.1538 of 2021 15 themselves have offered to shift to more expansive premises adhering to all norms by issuing Exhibit P21 communication. 47. Now the question is whether the Hostel Facilities available in the Lisie College of Nursing is adequate for a larger intake of students. There is no stipulation in Exhibit R3(a) as regards Hostel Room Space. The petitioner relies on Exhibit P24 minimum guidelines issued by the INC to substantiate the contention that they are providing enough space to each hostel student as per the requirement. Exhibit P24 states that there shall be separate hostels for male and female students. As far as the hostel room is concerned, the minimum guidelines issued by the INC provides that the space provided in a room should be ideal for two students with a minimum of 100 sq. feet carpet area. The Furniture provided in the room should include a cot, a table, a chair, a book rack, a cupboard, and a cloth rack for each student. Much deliberation is not required to conclude that in a 10 feet x 5 feet (50 square feet) area, a student cannot pack a cot, a table, a chair, a book rack, a cupboard and a cloth rack for himself and pursue his education. This would be worse than incarceration. It is obvious that the INC has not given much of a thought into the space requirement of a student in a hostel. I am of the view that the fifty square feet allotted for an individual can only be the personal space that the student can have for herself/himself after fitting the furniture mentioned above, however moderate the same may be, in the rest of the space. What the petitioner has done to save space is to accommodate five students in a room having an area of about 256 to 281 sq. ft with separate cots and storage in the same room. The study facilities with desks, benches etc are provided in a separate common study area having an area of about 910 sq. ft. It is thus obvious that there has been serious compromises insofar as hostel space for an W.A.No.1538 of 2021 16 individual student. Having considered the entire facts, I am inclined to agree with the assessment of the KNMC and KUHS that the hostel space is thoroughly inadequate and is not sufficient to cater to a larger number of students than what has been allotted for the present academic year by Ext.P19 order. 48. Though several other issues have been raised by the KNMC, it is not necessary to delve into those aspects in this writ petition. I am satisfied that Exhibits P19 and P20 were issued on relevant considerations and with the interest of the students in mind. 49. In summation, I hold that the reduction of intake to 40 seats by the 3[rd] respondent is for justifiable reasons. The materials made available before this Court clearly reveals that there are stringent space constraints in the institution. The petitioner has not been able to place reliable materials before this Court to show that the nursing institution is exclusively situated in property having an extent of 3 Acres as contended by them. The records also reveal that the hostel is congested and insufficient to cater to students, if an enhanced intake is permitted. Consequently, I find no justifiable reason to interfere with Ext.P19 and P20 orders. This writ petition will stand dismissed. There will be no order as to costs.” It is thus challenging the legality and correctness of the judgement, this appeal is preferred. 17. We have heard, learned Senior Counsel for the appellant Sri.George Poonthottam, assisted by Adv.Chitra P. George, learned Special Government Pleader Sri.K.B.Ramanand, learned Standing Counsel for Indian Nursing Council W.A.No.1538 of 2021 17 Sri.Abraham P. Meachinkara, learned counsel Sri. N Raghuraj for the State Nursing Council, learned Standing Counsel Sri.P.Sreekumar for the Kerala University of Health Sciences, and perused the pleadings and entire material on record. 18. The paramount contention advanced by the learned Senior Counsel for the appellant is that insofar as Exhibit R3(c) inspection report is concerned, the said inspection is conducted by two incompetent persons, who are not qualified to conduct inspections, even going by the guidelines issued by the State Nursing Council in the matter of conducting inspection. It is also argued that they are not teaching faculty members and one among them is not a Graduate in Nursing and the other one, though a M.Sc Graduate, is not a qualified person with teaching experience in conducting inspection as per the State Nursing Council guidelines. 19. That apart it is submitted that the first inspection conducted on 19.3.2021 was by the Principal of a Nursing College and the second member was a Senior Faculty of Government Medical College, Kalamassery, and the appellant understands that there was no adverse remarks made by the said expert members as against the appellant institution. Therefore, the inspection conducted on 21.6.2021 reflected in Exhibit R3(c) report is only to be ignored. 20. Learned Senior Counsel has also advanced an argument that the observations contained in the report are against the stipulations contained under W.A.No.1538 of 2021 18 clause 14 of the guidelines issued by the State Nursing Council. It is also submitted that the appellant institution was given permission to offer B.SC Nursing Programme with an intake of 50 students in the year 2002 and thereafter, the institution was given permission to offer Post Graduate Courses in four specialities in the year 2011, and 2021 with a total intake of 18 seats; that in 2012, the institution was given permission for Post Basic Nursing Programme with an intake of 30 seats and while sanctioning the above courses, the institution had permission for 50 seats in General Nursing and as such there was a total intake of 148 seats. 21. Therefore, the sum and substance of the contention advanced by the learned Senior Counsel is that all these courses were given sanction after conducting inspection by various authorities including Indian Nursing Council, State Nursing Council and University every year in order to evaluate the infrastructure facilities, apart from the Government conducting inspection for the purpose of issuing NOC before sanctioning of courses. Therefore, it is submitted that none of those authorities until 2021 had reported lack of facilities, lack of hostel rooms etc. as now found by the State Nursing Council in the surprise inspection. 22. Anyhow, learned Senior Counsel has also submitted that the Post Graduate Course sanctioned with a total intake of 18 seats and the Post Basic Course sanctioned with an intake of 30 seats were discontinued in the year 2018. W.A.No.1538 of 2021 19 That apart, out of the 50 seats sanctioned in General Nursing, 20 seats were reduced restricting the intake to 30 and it was accordingly, that in the year 20202021, the intake permitted for B.Sc Nursing was increased to 70 and that too, after conducting four rounds of inspections by all the authorities, as mentioned above including the State Nursing Council. It is also submitted that the built up area provided for Nursing College and hostel continued to be the same while the institution enjoyed permission for 148 seats. Therefore, it is submitted that for the year 2020-2021, permissions sought for in B.Sc Nursing was 70 seats and 30 seats in General Nursing with a total intake of 100 seats as against the 148 seats, for which permission was granted earlier. 23. That apart it is submitted that the inspection by Indian Nursing Council, Director of Medical Education, State Nursing Council and University, were conducted by experts viz., Principal of Nursing College and the Senior Faculty in the Nursing College, however, now only the Council Members are added along with the experts, which is contrary to the guidelines issued in regard to the inspection by Indian Nursing Council and Kerala Nurses and Midwives Council. So also it is pointed out that when Exhibit P8 notice was received from the State Nursing Council, it was answered by the college through Exhibit P9. It is also submitted that the space of the room measuring 256 to 281 sq.fts to accommodate 5 W.A.No.1538 of 2021 20 students in a room is specifically indicated in Exhibit P9 reply and it is further stated in the reply that a space of 910 sq.ft is provided in each floor with adequate fans and lights for 60 students excluding day scholars and that the students are given facilities for sports activities in the nearby compound under the control of the same management, which belong to the same diocese with a large extent. 24. Yet another argument advanced by the learned Senior Counsel is that as per Exhibit P26 regulations framed by the Indian Nursing Council, it is provided that Nursing Programme may be in hospital premises with a condition that it shall be in a separate block/floor with specified sq.ft area. The requirement of the teaching block is specified as 23200 sq.ft. with an annual admission capacity of 60 students and the bifurcation of the area is also provided under the regulations. 25. Therefore, according to the learned Senior Counsel for the appellant, the total constructed area specified as per the regulations is 44300 sq.ft. whereas the total built up area available with the Nursing College of the appellant is 55539 sq.ft. with 1080 sq.ft. classrooms. So also it is further submitted that the Nursing College is also having an extra 2400 sq.ft area to accommodate the students as and when required. Therefore, it is submitted that the institution has satisfied all the facilities that are required for conducting the Nursing Programme even with a higher intake, and as per the regulations of the Indian Nursing Council, the space W.A.No.1538 of 2021 21 requirement is in terms of building/floor, which was not taken note of by the learned Single Judge, is the contention. 26. It is also stated that the permission to conduct Nursing Programme is given by the Indian Nursing Council and other authorities only in favour of a trust, society or company and the appellant is administered by a charitable trust, and a total extent of 577.8332 Ares is given on lease basis by the Archdiocese of Ernakulam, a religious establishment of Christian Minority Community. It is submitted that out of the said area, an extent of 217 cents of land is set apart as the land to be used for the Nursing College, wherein constructions have been effected for conducting the class rooms, laboratory, hostel facilities and other facilities that are required for conducting Nursing Programme in accordance with the specification of the Indian Nursing Council as well as State Nursing Council. 27. Submissions are also made with regard to the hospital facilities and instructional facilities available in the hospital, since it is a 750 bedded hospital having all branches of medicine except inpatient facilities for Psychiatry, and finally it was submitted by the learned Senior Counsel that the 3 Acres of land requirement considered by the learned Single Judge to decline the reliefs sought for by the appellant, is not a requirement under law and the factors on hostel facilities discussed in the judgement is opposed to the facts and the requirements W.A.No.1538 of 2021 22 for conducting Nursing courses as provided in the regulations issued by the Indian Nursing Council. 28. On the other hand, learned counsel for the State Nursing Council submitted that a team of Inspectors had inspected the appellant college on 19.3.2021 and it revealed certain shortcomings with respect to the land and congested atmosphere in the hostel provided by the appellant for the students; that in the course of inspection concerned, the authorities of the appellant college in response to a query of the Inspectors with regard to the extent of land earmarked for the Nursing College, Exhibit R3(b) affidavit in stamp paper was given affirming that as per Sy.Nos.357/5, 358/1, 357/1, 358/3, 358/2, an extent of 46 cents, 72 cents, 50 cents, 24.1 cents and 22 cents respectively, totally comprising of 214.1 cents of land as mentioned in the lease deed, has been earmarked for the Lisie College of Nursing, a unit of the Lisie Medical and Educational Institutions, Ernakulam and that the Lisie College of Nursing building with Corporation No.36/935 has been constructed on the above land. That apart it is submitted that the State Nursing Council has alerted the appellant in advance as per Exhibit P8 communication issued by the Registrar of the Council while declining their request for enhancement of seats from 70 to 150 that there was inadequacy with respect to the land earmarked for the college and that hostel rooms are W.A.No.1538 of 2021 23 congested but the appellant college did not take any effective steps to rectify the defects. 29. Learned counsel for the State Nursing Council also submitted that the report of inspections dated 19.3.2021 was placed before the consideration of the Council in its meeting held on 18.6.2021, in which it was resolved to conduct a surprise inspection of the appellant college to verify the defects already noted through two members of the Council, who were duly authorised by the Council for the purpose; that the said Inspectors conducted inspection on 21.6.2021 and submitted a report dated 25.6.2021, wherein the Inspectors had categorically stated that the appellant college is located in a property having an extent of 48 cents alone and that the college authorities have furnished a false affidavit claiming that the land having an extent of 2.14 Acres is allotted for the college, which was found to be incorrect on physical verification. Therefore, it is submitted that the Inspectors, considering the serious suppression of material facts by the college authorities, opined that the approval of the college for the current year was liable to be withheld. The State Nursing Council, it is submitted, considered the afore report and such other materials in its meeting held on 29.6.2021 and resolved to accord permission to the appellant college to make admission to the B.Sc Nursing courses for 2021-2011 with an intake of 40 students and W.A.No.1538 of 2021 24 simultaneously the appellant college was required as per Exhibit P20 communication to make available certain documents and also to shift the college to a premises which specified the requirements prescribed by the Indian Nursing Council. It is also pointed out that in response to Exhibit P20 order, the appellant college submitted Exhibit P21 reply accompanied by Exhibit P22 series of documents; that in Exhibit P21 reply the appellant college categorically admitted their failure to comply with the norms of the Indian Nursing Council in the matter of college building by stating that, “we have plan to shift Lisie College of Nursing to a suitable building adhering to all the norms laid down by the Indian Nursing Council, at the earliest “. It is also submitted that Exhibit P22 series of documents produced by the appellant college in purported compliance of the directions in Exhibit P20 order, were only self serving documents created by the appellant college themselves. Since certain fitness of the building where the college in question is located, was issued by the construction co-ordinator of the Lisie Hospital, simultaneously, Fire and Safety certificate was issued by a private entity instead of providing a certificate from the Fire and Safety Department. 30. That apart, it is predominantly contended that as per Exhibit P20 order though appellant college is required to submit copies of the sketch and plan of the college and the property certified by the competent authority, the appellant has W.A.No.1538 of 2021 25 produced a certificate, Exhibit P22, which was issued by the Architect of the appellant. Therefore, according to the learned counsel for the State Nursing Council, it is indisputable that the appellant college has conveyed false information to a statutory authority like a Council with respect to the infrastructural facilities of the college in question which warranted a penal action. 31. It is also submitted that as per clause 14 of Exhibit P24 guidelines issued by the State Nursing Council and clause 9 of Exhibit P26 regulations issued by the Indian Nursing Council under the heading “ Minimum requirement of physical facilities”, it is stipulated that the college should have playground spacious for outdoor sports like Football, Volleyball, Badminton and for athletics and therefore, it is clear that a Nursing College would require space/land apart from the building. 32. But in the instant case, the inspection conducted by the State Government revealed that the extent of land earmarked for the college is confined to 48 cents. The contention with respect to the appellant misled by producing a lease deed executed by the Archdiocese is concerned in favour of Lisie Hospitals would only show that the entire extent of the land let out is for functioning of the institutions within the area in question and in spite of earnest efforts made by the State Council, no separate area earmarking the land available for the B.Sc Nursing course is produced by the appellant. Learned counsel has also relied upon the W.A.No.1538 of 2021 26 judgement of the Apex Court in **Medical Council of India v. Kallinga Institute of Medical Sciences (KIMS) & Ors.** reported in [(2016)11SCC 530] and **Medical Council of India v. The Chairman, SR, Educational & Charitable Trust & Anr.** reported in [(2018 KHC 6864] to canvass that the report of the Inspectors cannot be brushed aside by the court relying upon the self-serving assertions of the educational institutions unless such institution demonstrates that those reports are ex facie perverse, mala fide or having jurisdictional errors. 33. The contention advanced by the learned counsel for the State Nursing Council is that there is not even a whisper in the pleadings of the appellant that the subject report suffers from any vices enumerated by the Apex Court in the aforesaid judgements. Therefore, the submissions of the learned counsel is that the learned Single Judge has taken note of all these aspects and there is no requirement for interference with the judgement. 34. We have evaluated the rival submissions made across the Bar. Before we proceed to adjudicate the issues raised in the appeal, we are of the view that a few provisions of the guidelines issued by the Health and Family Welfare (C) Department, Government of Kerala dated 17.2.2012, produced as Exhibit R3(a) by the State Nursing Council along with its counter affidavit, and Exhibit P26 regulations issued by the Indian Nursing Council as per notification dated 5[th] July W.A.No.1538 of 2021 27 2021 would be relevant. Exhibit R3(a) guidelines are issued by the Government of Kerala in order to ensure the standard of Nursing Institutions to maintain the quality of education, transparency in granting permission to start courses under the self financing nursing sector and to standardise the procedure for starting new colleges. It is an admitted fact that approval is required every year from the State Nursing Council. Anyhow, the facilities provided under clause III of the guidelines reads thus: ## **III. Facilities** 1. The institution should have a parent hospital with minimum 200 beds for students, average occupancy per year above 75% and also 04 basic speciality wards (General/Private) such as Medicine, Surgery, OBG and Paediatric with General/Private wards having at least 06 beds for each speciality. The student patient ratio should be maintained at 1:3. 2. The institution should have a single plot of minimum 3 acres of land in ownership and possession by the applicant for the exclusive use of the college This may be relaxed in urban areas where the land shall not be in more than two plots. If so, the distance between the two plots shall not be more than 10 kms. The college/ School including library shall be in the same plot and hostel shall be in the other plot subject to the limit of 10 kms. 3. The applicant should produce a blueprint of the proposed college/School building including library and hostel building at the time of inspection conducted by Deputy Director of Nursing Education/ Registrar KNMC, if the same is not constructed / under construction. W.A.No.1538 of 2021 28 4. The hospital in which affiliation is sought for specialty clinical experience should be within 30 Km from the parent institution, except in psychiatry. 5. The institution should have other facilities prescribed by Indian Nursing Council, Kerala Nurses and Midwives Council and Kerala University of Health Sciences, at the time of the inspection of the respective bodies. 6. 35. It was relying upon condition No.2 of clause III, learned Standing Counsel appearing for State Nursing Council submitted that the institutions should have a single plot of minimum 3 acres of land in ownership and possession for the exclusive use of the college. Admittedly, the appellant college started B.Sc Nursing College in the year 2002 and the guidelines are issued only in the year 2012. Whatever that be regulation VI deals with enhancement of seats which reads thus: **VI. Enhancement of seats-** The institution should apply in the prescribed form for enhancement of seats with the token of remittance of prescribed fee for the purpose and also along with the approval of the Indian Nursing Council. The prescribed fees enhancement of seats is as follows: |B.Sc Nursing Course|- Rs.50,000/-| |---|---| |Post Basic B.Sc Nursing Course|- Rs.50,000/| |Post Basic Diploma course|- Rs.25,000/| |M.Sc. Nursing Course|- Rs. 50,000/| |GNM Course|- Rs.25,000/-| on receipt of application, the same will be examined and enhancement W.A.No.1538 of 2021 29 will be granted to eligible cases subject to obtaining approval/affiliation from KNMC and KUHS. If the application is rejected on the ground of deficiencies in the required facilities, the position will be informed to the applicant and further processing will be made only after rectification of defects and ensure compliance to the DDNE. The fees once paid for enhancement of seats will not be refunded on any account. Regulation X deals with letter of permission, which reads thus: “ **X. Letter of Permission** - The institution should submit separate Application for LOP enclosing a copy of approval from INC, KNMC and affiliation from KUHS along with Agreement for Admission and Fees for Nursing courses executed in stamp worth Rs.100/-. The application should also be enclosed an original Chalan token of remittance of Interest Free Refundable Deposit, in the account maintained by Health & Family Welfare (C) Department, as follows: GNM Course -Rs.1lakh B.Sc Nursing course - Rs.10 lakh Post Basic B.Sc Nursing Course - Rs.10 lakh Post Basic Diploma - Rs.1lakh M.Sc. Nursing Course - Rs. 10 lakh If an institution winds up after settling all liabilities the amount will be refunded to the applicant institution on their request with proof of settling the liabilities from KUHS and KNMC. The amount will not be refunded to the applicant institution if it winds up without allowing the students to complete the course as the amount is collected as a compensation for making alternate arrangements to enable the students to complete the course. W.A.No.1538 of 2021 30 The application for LOP for starting the course in particular academic year should reach Government before 30 April of that year and after processing LOP will be issued to the eligible applicants on or before 31" May so that they can start the course in that year itself. No LOP will be issued after 31[st] March of the academic year in which the course is intended to be started.” 36. These are the relevant provisions to be considered in the instant appeal insofar as concerning the guidelines issued by the State Nursing Council. Some of the provisions of Exhibit P26 regulation issued by the Indian Nursing Council would also be relevant for effective disposal of the appeal. Regulation 9 deals with number of sanctioned seats, which specifies that; (1) maximum of 100 seats will be sanctioned for the B.Sc (Nursing) programme for which the institute must have a parent Medical College or parent hospital having 300 beds or above subject to teaching and physical facilities available for Bsc (Nursing) programme.(2) Maximum of 60 seats will be sanctioned for the institution with parent hospital having less than 300 beds on the basis of teaching and physical facilities for B.Sc (Nursing) programme. 37. Regulation 10 deals with enhancement of seats which specifies that an inspection for enhancement of seats under section 13 of the Act shall be conducted only once in an academic year i.e., only one application/proposal shall W.A.No.1538 of 2021 31 be accepted, in one academic year. Further, SNRC approval is mandatory for enhancement of seats. Regulation 11 deals with various aspects including minimum requirements of physical facilities. Regulations pertaining to the building and laboratories thereunder reads thus: ## **Regulation pertaining to Building and Laboratories** (i) School and College of nursing can share laboratories, if they are in same campus under same name and under same Trust/Society/Company, that is the institution is one but offering different nursing programs. However, they should have equipments and articles proportionate to the strength of admission. The classrooms should be available as per the requirement stipulated by the Council for each program. (ii) Further, two same programs by the same institute/Trust/Society/Company is not allowed in the same campus. (iii) The nursing institutions can have all the nursing programs in the same building but with requisite program wise infrastructure. However, laboratories can be shared. (iv) If the Trust/Society/Company has some other educational programs, the nursing program shall be in separate block/floor with prescribed sq.ft. Area. (v) Nursing programs may be in hospital premises with a condition that it shall be in separate block/floor with prescribed sq.ft area. (vi)Long lease by the Government will be considered. However, rented building shall not be considered as their own building. (vii) It is mandatory that institution shall have its own building within two years of its establishment. W.A.No.1538 of 2021 32 ## (viii) Building/Lease/Rented Building: (a) If one of the trustee/member/director of the Trust/Society/Company desires to lease the building owned by him for nursing program, it should be for a period of 30 years. It should also be ensured that lease deed that is entered into between the Trust/Society/Company and the trustee/member/ director, owning the building, should contain a clause that the lease deed cannot be terminated for a period of 30 years Further, it is clarified that, for a Nursing Institution (Managed by a Trust/Society/Company), own building would be a building either owned and controlled by the Trust/Society/Company or owned and controlled by trustee/member/director of the Trust/Society/Company. That is, if the owner of the building is a trustee/member/director of the Trust/ Society/Company and she/he leases the building to the Trust/Society/Company for 30 years, it will be considered as own building of the nursing institution, (b) A duly registered gift deed of the building in favor of the Trust/Society/Company should be construed to be “own building" Further it is clarified that if the lease of the building is between any Government authority and the Trust/Society/Company/nursing institution and the lease is for 30 years or more, it will also be considered as own building. Any deed of the building which is not as per either clause (a) or (b) above shall be considered as “Rented Building” only. (c) In case of irrevocable power of attorney, documents of the building should be duly registered as per law. (d) **Penalty for not having own building** :Institutions which do not have their own building within two years has to pay the penalty for not having the W.A.No.1538 of 2021 33 own building. The penalty fees is Rs. 1 Lak fo B.Sc. (Nursing) Program for 6 consecutive years. Even after 6 years if the institution does not have own building then action shall be taken under Section 14 of the Act. However, a lease of 30 years is permissible with the trustee/member/director of the Trust/Society/ Company. 38. Sub-regulation (A) thereto deals with teaching block, which specifies that the college of Nursing should be within 30 Km distance from its parent hospital having space for expansion in an institutional area. For a college with an annual admission capacity of 60 students, the constructed area of the college should be 23200 square feet. The details of constructed area for admission capacity of 60 students is specified thereunder in a tabular form, which is extracted hereunder: |S.No.|TeachingBlock|Area (in sq.ft.)| |---|---|---| |1|Lecture Hall|4@900=3600| |2|**Skill Lab/Simulation Laboratory**|| ||i. Nursing Foundation including Adult Health Nursing &<br>Advanced Nursing Lab.|1600| ||ii. Community Health Nursing& Nutrition Lab|1200| ||iii. Obstetrics and Gynaecology Nursing Lab|900| ||iv. Child Health NursingLab|900| ||V.Pre-Clinical Science Lab|900| |3|Computer Lab*|1500| |4|A.V.Aids Room|600| ## 39. Clause (1) of sub-regulation (A) deals with classrooms which stipulates W.A.No.1538 of 2021 34 that there should be at least four classrooms with the capacity of accommodating the number of students admitted each year; the rooms should be well ventilated with proper lighting. The seating arrangements for students should provide adequate space and comfortable desk/chairs with tables;there should be built-in white/green/black boards and provision for projection facilities; also there should be a desk/dais/big table and a chair for teacher and racks/cupboards for storing teaching aids or other equipment needed for the conduct of class. Regulation 9 deals with a playground which specifies that play ground should be spacious for outdoor sports like volleyball, football, badminton, and for athletics. 40. Sub-regulation (b) of Regulation 11 deals with hostel block, which reads thus: ## **B. Hostel Block** Adequate hostel/residential accommodation for students and staff should be available in addition to the mentioned built-up area of the Nursing College respectively. ## **Hostel Block (60 students)** |S.No.|Hostel Block|Area (in sq.ft.)| |---|---|---| |1|Single Room|12000 (50 sq.ft.for each<br>student)| ||Double Room|| |2|Sanitary|One Latrine & One Bath Room<br>(for 5 students)-600x4=2400| |3|Visitor Room|500| |4|Reading Room|250| |5|Store|500| W.A.No.1538 of 2021 35 |6|Recreation Room|500| |---|---|---| |7|Dining Hall|3000| |8|Kitchen & Store|1500| |9|Warden's room|450| |**Total**||**21100 sq.ft**| ## **Grand Total of Constructed Area** |Teaching Block|23200 sq.ft| |---|---| |Hostel Block|21100 sq.ft| |Grand Total|44300 sq.ft| 41.Therefore, it can be seen that even though as per regulation (iii) of Exhibit R2(a) guidelines issued by the State Government, it is insisted that the institution should have a single plot of minimum 3 Acres of land in ownership and possession for the exclusive use of the college. There is no such insistence made in the regulations issued by the INC. However, the contention advanced by the learned counsel for State Nursing Council is that as is well settled, the State Nursing Council is entitled to prescribe a higher standard for the purpose of granting approval and therefore, the insistence made by the State Nursing Council in regard to the land available for the purpose of conducting sports activities is valid in law. 42. But, as we have pointed out earlier, the guidelines are issued by the State Government only on 17.2.2012 and it shows that the guidelines are issued for the purpose of regulating and to have transparency and quality education. But W.A.No.1538 of 2021 36 in the matter of starting courses and for starting new colleges, it is true, as per the regulation issued by the Indian Nursing Council, playground is insisted upon to conduct sports like volleyball, football, badminton, and for athletics, but no specified extent of land is insisted upon as per the regulations. It is also submitted by learned Standing Counsel for the State Nursing Council that as per paragraph 4 of the State guidelines, if any deficiencies are found at the time of inspection of the Deputy Director of Nursing Education and if the report shows any deficiencies for starting the course, the same will be communicated to the applicant and such deficiencies will also be notified in the official website of the Director of Medical Education and the applicant should submit a rectification report to the Deputy Director of Nursing Education within one month from the date of receipt of such communication; that on receipt of such rectification report, the Deputy Director of Nursing Education will arrange re-inspection and report compliance to the Government with suggestions within one month from the date of receipt of rectification report; that on getting satisfactory report with the Deputy Director of Nursing Education's recognition, NOC will be granted to the applicant on or before 31[st] December so as to commence class in the next academic year. It is also specified thereunder that, if there are deficiencies still existing, such request will be rejected and intimation will be given to the applicant on or before 31[st] December. W.A.No.1538 of 2021 37 43. Anyhow, we come back to Exhibit P19 impugned order passed by the SNC dated 30.6.21, which is extracted for convenience and brevity: ## “ **- - ORDER NO.G.11571/01/NC DATED 30 06 2021** As per reference 1[st] cited, Conditional Sanction was accorded to the Principal Lisie College of Nursing. Lisie Hospital, Ernakulam to admit the students during the academic year 2020-21. As per reference 2[nd] cited, the Principal has remitted prescribed fee for periodic inspection 2021-22. The Commission appointed by the Kerala Nurses and Midwives Council inspected the institution on 19-03-2021 and submitted their report. The inspection report was scrutinized and placed before the Kerala Nurses and Midwives Council held on 18-06-2021. The Council resolved to conduct a Surprise Inspection and as per reference 5[th] cited, a Surprise Inspection was conducted on 25-06-2021. The report was again placed before the Council held on 29-06-2021. The Council resolved to accord sanction to admit students during the academic year 2021-22. vide resolution cited (6). In the circumstances stated above, sanction is hereby accorded to the Principal, Lisie College of Nursing, Lisie Hospital, Ernakulam for the admission of B.Sc Nursing Programme with an annual intake of 40 students during the academic year 2021-22 and the Conditional Sanction issued during the year 2020-21 is regularized. |Sl.No|Programme|Seats<br>2021-22| |---|---|---| |1|B.Sc Nursing|40| W.A.No.1538 of 2021 38 The Management should strictly follow the guidelines issued by the Government Indian Nursing Council and Kerala Nurses and Midwives Council for conducting the Programme. The Management should obtain affiliation from the Kerala University of Health Sciences, Thrissur. The Management should obtain separate order from the Kerala Nurses and Midwives Council to admit the next batch of students during 2022-23. 44. On a reading of the said order, it is clear that on the basis of the inspection conducted on 19.3.2021 by a Commission appointed by the State Nursing Council and surprise inspection conducted on 25.6.2021, the Council decided to accord sanction to the Principal of the appellant college to conduct B.Sc Nursing programme with an annual intake of 40 students during the academic year 2021-2022. Thus, it could be seen that the number of seats is reduced from 70 to 40. It is not reflected from the order, the reason for reducing the number of seats. However, from Exhibit P20 order issued on the very same day i.e., 30.6.2021, it is clear that certain deficiencies were noted and the appellant college was directed to rectify the same, which read thus: 1. Receipt of building tax of the college building for the last 3 years. 2. Attested copies of sketch and plan of the college building, approved by the concerned authority. 3. Fire and safety certificate of the college building. 4. Attested copy of the exact land deed of the college building and its campus. W.A.No.1538 of 2021 39 5. College building should be shifted to a new building with all facilities as per INC norms. 45. On an analysis of Exhibit P20, it is clear that the deficiencies noted by the State Nursing Council is clearly specified thereunder but nowhere in the said order, it is stated that the appellant college is deficient due to want of 3 acres of land. It is the case of the appellant that, to Exhibit P20, appellant has submitted Exhibit P21 & P22 replies and produced documents along with the same in compliance with the deficiencies noted in Exhibit P20 order. However, the thrust of the contention advanced by the State Nursing Council is largely dependent on Exhibit R3(c) report dated 21.6.2021 i.e., on the basis of the surprise inspection conducted, which reads thus: “Inspection Report of Lisie College of Nursing, Ernakulam on 25/06/2021 by Sibi Mukesh.M.P. and Haris.M, Boards Member KNMC, as per order No.G 11571/01/NC dated 21/6/2021. ---------------------------- Inspection started at 9.30 a.m., as Principal is on exam duty, Vice Principal is informed about the inspection. Lisie College of Nursing is have current intake of 70 B.Sc Nursing students, college building was built back in 1970's and the land area is not adequate. As per INC guidelines, land area 3 to 4 Acres, but Lisie College of Nursing is situated in less than 50 cents i.e., 1/6[th] of what needed. ... As per the above sketch (blue print of the plan submitted by Principal) College has no other area building than college building and the college W.A.No.1538 of 2021 40 building is about 1800 sq.mt, and its in 48 cents (1cm = 0.0002471 Acres) (2) There are 5 lecture halls in Lisie college of Nursing. Out of them only one class room has a built up area to accommodate 70 students. Another 4 class rooms cannot afford 70 students. (3) Fundamental lab is not having enough space to accommodate 70 intake. (4) College of Nursing and school of Nursing is situated in this 48 cents space. (5) As per Indian Nursing Council norms 29 teachers should be there for an annual intake of 70 students but Lisie College of Nursing have only 22 teachers. (6) Exam hall is not in the college building, it is situated in the hospital building. ## Suggestions As the Affidavit given during previous inspection is fabricated as it shows 2.14 acres are allotted for college (copy attached) but only survey No.358/3 & 358/2 which has around 46 cent land is allotted for college. Inspectors visited around the college and confirmed the area and mark in the sketch above. By giving such a false fabricated Affidavit Lisie College of Nursing has committed serious offence which is against the law of land and it is considered to be a malpractice. Hence we recommend to withhold annual affiliation and to take legal actions against management of Lisie college of Nursing. Copy of affidavit, Blue print and Site Plan attached.” ## 46. On a clear analysis of the R3(c) inspection report, what we could gather is that various defects were noticed by the inspection team in the inspection that was conducted on 21.6.2021. However, in Exhibit P20 rectification order dated W.A.No.1538 of 2021 41 30.6.2021, the defects noted in Exhibit R3(c) are not at all reflected. There is no case for the State Nursing Council that a copy of Exhibit R3(c) report was given to the appellant. Admittedly, the order notifying deficiency issued to the appellant is only Exhibit P20 dated 30.6.2021, which we have extracted above. Therefore what we can legally presume is that, the State council which is the final authority to take a decision in the matter of grant of approval was not convinced to convey the deficiencies noted in Exhibit R3(c) surprise inspection report to the appellant . 47. Therefore, considering the rival submissions raised by the parties in regard to the reduction of seats and the deficiencies pointed out, we will have to confine ourselves to the defects noted in Exhibit P20. The reply given by the appellant college to Exhibit P20 would show that the building tax receipt of Lisie College building from 2018 to 2020 is attached apart from copies of sketch and plan of college building. However, it is admitted that as Lisie College of Nursing allotted an old building since 2003, the standard Fire & Safety requirements, which are stipulated for new building is not in place, instead, fire extinguishers have been provided at specific place and spacious staircase is available for exit in case of fire, on two sides of the building. It is also clear that an affidavit, lease deed and a sketch of the land is attached and it is also stated that the appellant has plans to shift Lisie College of Nursing to a suitable building adhering to all the norms laid W.A.No.1538 of 2021 42 down by the Indian Nursing Council, at the earliest. 48. Therefore, we find force in the contention advanced by learned Senior Counsel for appellant that whatever defects contained in Exhibit R3(c) was never communicated to the appellant and the defects so noticed by surprise inspection team had come to the knowledge of the appellant only when the counter affidavit was filed by the State Nursing Council in the writ petition in question and therefore, insisting for rectification of the defects contained in Exhibit R3(c) report is clearly violative of the principles of natural justice, and is an arbitrary and illegal exercise of power on the part of the State Nursing Council. It is well settled in law that, if any material aspect is omitted to be included in an impugned order by a statutory authority, that material deficiency cannot be rectified through a counter affidavit filed in court along with the vital documents . 49. Moreover, the learned counsel appearing for the Indian Nursing Council submitted that the basic requirement of the Indian Nursing Council is in respect of the adequacies of the teaching block as well as hostel building, as is extracted above, and it was not insisting throughout the years for a larger playground even though in the regulation it is specified so. It is also pointed out by the learned counsel for Indian Nursing Council that the Indian Nursing Council has not denied approval to any institution for not providing a larger area for the playground. We W.A.No.1538 of 2021 43 are also convinced that Exhibit P26 regulations and Exhibit P24 guidelines of the Indian Nursing Council have given thrust and significance to the adequacies of a teaching block and a hostel block, and other educational and academic requirements and pursuits, though it speaks of a playground for outdoor games as is specified above. Indisputably, the appellant is having sufficient building space in accordance with the specifications of the Indian Nursing Council, and this we say especially due to the fact that any of such defects are seen reflected in the impugned orders . 50. Anyhow, analysing the situation in the above backdrop and the sum and substance of Exhibit P19 impugned order, issued without assigning any reason for reducing the intake of 70 seats and the contents of Exhibit P20 order noting deficiency, we are of the considered opinion that interference is required to the judgement of the learned Single Judge. Therefore, we set aside the judgement of the learned Single Judge and hold that Exhibit P19 order reducing the number of seats from 70 to 40 on the basis of Exhibit R3(c) surprise inspection report cannot be sustained under law. Accordingly, ExhibitP19 order is set aside to the extent of reducing approval of the seat to 40 from 70 for the academic year 2020-2021 as sought for by the appellant. W.A.No.1538 of 2021 44 We also find that substantially the defects noted in Exhibit P20 order dated 30.6.2021 is complied with by the appellant college. In that view of the matter, the writ appeal is allowed and there will be a direction to the State Nursing Council to grant approval for 70 seats to the appellant college for the ensuing academic year 2021-2022, at the earliest and at any rate before 31.12.2021. Sd/- ## **S.MANIKUMAR CHIEF JUSTICE** Sd/- **SHAJI P.CHALY** **JUDGE** smv