Priyadarshini Medical & Educational Charitable Trust v. Kerala Nurses and Midwives Council

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 30TH DAY OF SEPTEMBER 2016/8TH ASWINA, 1938** **WP(C).No. 17529 of 2016 (M)** **----------------------------** **PETITIONER(S):** **-------------** **PRIYADARSHINI MEDICAL & EDUCATIONAL CHARITABLE TRUST, REG.NO.S.397/036, KUNNUMMAL, KANHANGAD-671315, KASARAGOD DISTRICT, REPRESENTED BY ITS CHAIRMAN.** **BY ADVS.SRI.O.V.MANIPRASAD SRI.JOSE ANTONY** ## **RESPONDENT(S):** - **--------------** **1. THE KERALA NURSES AND MIDWIVES COUNCIL, RED CROSS ROAD, THIRUVANANTHAPURAM-695 035, REPRESENTED BY THE REGISTRAR.** **2. THE REGISTRAR,** **THE KERALA NURSES AND MIDWIVES COUNCIL, RED CROSS ROAD, THIRUVANANTHAPURAM-695 035.** **3. THE INDIAN NURSING COUNCIL, COMBINED COUNCILS BUILDING, KOTLA ROAD, TEMPLE LANE, NEW DELHI-110 002.** **4. JINU THOMAS, AGED 21, D/O.M.THOMAS, THEKKEL HOUSE, PARAMBA PO.,PARAPPA VIA, KASARAGOD - 671 535.** **5. RUBEENA ROY, AGED 20, D/O.ROY JOHN, PARAKKAL HOUSE, PANATHOUR PO., RAJAPURAM VIA, KASARAGOD - 671 532.** **6. SUBHASINI K.S., AGED 21, D/O.SADASIVA, MUKAMIBIKA NILAYA, RAVANEESHWARAM PO., KASARAGOD - 671 316.** **7. ANUMOL BABY, AGED 21, KAVUMPURATH HOUSE, KUDIYANMALA P.O., NADUVIL VIA, KANNUR - 670 582.** **sv/** **-2-** **-2-** ## **WP(C).No. 17529 of 2016 (M)** ## **---------------------------** **8. DELNA MARIA JOSE, AGED 21, D/O.JOBY JOSEPH, THOKKANATTU HOUSE, KANNOTH POST, THAMARASSERY, KOZHIKODE - 670 581.** **9. SUJITHA S., AHED 20, D/O.SUNILKUMAR P.P., PUTHANTHARAYIL HOUSE, KADAKKARAPPALLY VIA, THYCAL P.O., CHERTHALA, ALAPPUZHA - 688 530.** **10. APARNA VIJAYAN, AGE 19, D/O.M.VIJAYAN, MOHANAM, ANANTHAMPALLA, OZHINHAVALAPPU P.O., NILESHWAR VIA, KASARAGOD - 671 314.** - **ADDITIONAL R11 IMPLEADED** **11. THE PRINCIPAL, MALIK DEENAR SCHOOL OF NURSING, THALANGARA P.O., KASARAGOD - 671 122.** - **ADDL R11 IMPLEADED AS PER ORDER DTD.20.9.2016 IN IA.14818/2016.** **R1-R2 BY ADV. SRI.N.RAGHURAJ, SC, TCMC & KNMC R3 BY DR.ABRAHAM P.MEACHINKARA,SC,NURSING COU R11 BY ADVS. SRI.SAJU J. PANICKER** **SRI.B.HARISH KUMAR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30-09-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **msv/** ## **WP(C).No. 17529 of 2016 (M)** ## **----------------------------** ## **APPENDIX** |**PETITIONER(S)'**|**EXHIBITS**| |---|---| |**-----------------------**|| |**EXHIBIT P1:**|<br>**A TRUE COPY OF THE LETTER DATED 18.3.2006 ISSUED**| ||**BY THE 3RD RESPONDENT.**| |**EXHIBIT P2:**|<br>**A TRUE COPY OF THE LETTER OF APPROVAL ALONG WITH**| ||**PERMISSION CERTIFICATE ISSUED BY THE**| ||**3RD RESPONDENT.**| |**EXHIBIT P3:**|<br>**A TRUE COPY OF THE LETTER DATED 23.8.2014.**| |**EXHIBIT P4:**|<br>**A TRUE COPY OF THE RESOLUTION OF THE EXECUTIVE**| ||**COMMITTEE OF THE PETITIONER TRUST HELD ON**| ||**18.5.2015.**| |**EXHIBIT P5:**|<br>**A TRUE COPY OF THE MINUTES OF THE PTA MEETING**| ||**HELD ON 24.9.2015.**| |**EXHIBIT P6:**|<br>**A TRUE COPY OF THE LETTER DATED 17.9.2015 OF THE**| ||**PRINCIPAL, SCHOOL OF NURSING MALIK DEENAR**| ||**CHARITABLE HOSPITAL, KASARAGOD.**| |**EXHIBIT P7:**|**A TRUE COPY OF THE LETTER DATED 16.9.2015 OF THE**| ||**PRINCIPAL, LISIE SCHOOL OF NURSING.**| |**EXHIBIT P8:**|**A TRUE COPY OF THE REPRESENTATION**| ||**DATED 25.9.2015.**| |**EXHIBIT P9:**|**A TRUE COPY OF THE LETTER DATED 21.10.2015 OF**| ||**THE 2ND RESPONDENT.**| |**EXHIBIT P10:**|**A TRUE COPY OF THE REPRESENTATION**| ||**DATED 10.11.2015.**| |**EXHIBIT P11:**|**A TRUE COPY OF THE MINUTES OF THE MEETING OF THE**| ||**1ST RESPONDENT COUNCIL DTD.17.10.2015.**| |**EXHIBIT P12:**|**A TRUE COPY OF THE MINUTES OF THE PRINCIPALS**| ||**MEETING DTD.19.10.2014.**| |**EXHIBIT P13:**|**A TRUE COPY OF THE MINUTES OF THE MEETING OF THE**| ||**1ST RESPONDENT HELD ON 18.12.2015.**| |**msv/**|| **-2-** **-2-** **WP(C).No. 17529 of 2016 (M)** **----------------------------** ## **RESPONDENT(S)' EXHIBITS** **-----------------------** **EXT. R1(a): A TRUE COPY OF THE MINUTES OF THE MEETING OF THE 1ST RESPONDENT HELD ON 17.10.2015.** **EXT. R1(b): A TRUE PHOTOCOPY OF THE MINUTES OF THE MEETING OF THE PRINCIPLES HELF ON 19.12.2014.** **EXT. R1(c): A TRUE PHOTO COPY OF THE DECISION TAKEN BY THE 1ST RESPONDENT IN A MEETING HELF ON 18.12.2015 VIDE ADDITIONAL AGENDA II (8).** **//TRUE COPY//** **P.S.TO JUDGE** **Msv/** ## **ALEXANDER THOMAS, J. ==========================** W.P.(C). No.17529 of 2016 ================================== Dated this the 30[th] day of September, 2016 ## JUDGMENT The case set up in the aforecaptioned Writ Petition (Civil) is as follows:- That the petitioner is a registered educational and charitable Trust which has established the Priyadarshini School of Nursing, Kanjangad, Kasaragod District, for conducting the General Nursing and Midwifery (GNM) course. The complaint of the petitioner essentially relates to the action on the part of Respondents 1 and 2 (State Nursing Council Authorities concerned) is declining permission to close down the nursing school conducted by the petitioner trust and consequently denying permission to accommodate their subsisting six students to other recognized nursing schools. The petitioner's nursing school was approved by respondents 1 to 3 from the year 2006 onwards. At the time of filing the writ petition, the college had 17 students studying in various classes in nursing course and now it is stated that there are only six students who are studying in the petitioner's W.P.(C). Nos.17529 of 2016 -2- institution. The petitioner has been running this nursing school in a rented building. Later the 3[rd] respondent (Indian Nursing Counsel Authority) had changed the guidelines and requirements to the nursing school by incorporating a new provision that all nursing schools have their own building and recognition was extended on giving undertaking that the nursing school will require their own building within the stipulated time. It is the case of the petitioner that the petitioner trust could not raise necessary funds for construction of its own building after acquiring property, which required several crores of rupees. Thus the 3[rd] respondent (Indian Nursing Council) has withdrawn the recognition granted to the petitioner's nursing school, which resulted in deletion of the name of the petitioner's nursing school, from the website of the 3[rd] respondent, Indian Nursing Council. According to the petitioner, this created a piquant situation wherein financing agencies who had earlier agreed to provide loans expressed their inability to disburse even sanctioned loans and students who passed out from the college for pursuing employment outside the state also face difficulty as the employers raise doubt regarding the validity of the certificates granted to them as the name of the nursing school W.P.(C). Nos.17529 of 2016 -3- was deleted from the website of the Central Council. 2. The school was conducted in a rented premise. The petitioner had to pay a penalty of Rs.50,000/- every year, as the institution has no adequate building. Moreover, the demand for the nursing schools has dropped drastically and inspite of various efforts like advertisements to attract more students, the petitioner could not increase the admission of the students even within the sanctioned capacities. The rental agreement made with the building owner has also expired and the building owner has initiated proceedings to evict the petitioner's nursing school from the building and pursuant to a compromise, the landlord had permitted the continuance of school upto 31.03.2016 and even that period has expired. It is also averred that with the concurrence of all stake holders, the petitioner has taken a decision as per Ext.P5 resolution to wind up the working of the nursing school and to take steps to accommodate the subsisting balance students to other recognized nursing schools in the state. The Principal of the petitioner's nursing school as per Ext.P8 dated 25.09.2015 had requested the 1[st] respondent (Kerala Nursing Council Authorities) for necessary sanction to close the nursing W.P.(C). Nos.17529 of 2016 -4- schools and transfer the students to other recognized schools. Thereafter the 3[rd] respondent as per the impugned Ext.P9 letter dated 21.10.2015 had intimated the Principal of the nursing school that the meeting of the 1[st] respondent (State Nursing Council) held on 17.10.2015 had resolved that all the students who obtained admission in the petitioner's school shall be allowed to continue in the same school and till then, the petitioner's nursing school should not be closed down. The petitioner thereupon had submitted Ext.P10 dated 12.11.2015 requesting the 1[st] respondent to reconsider the decision as per Ext.P9. Ext.P11 is the minutes of the 1[st] respondent (State Nursing Council) dated 17.10.2015, on the basis of which the impugned Ext.P9 was issued. Ext.P11 discloses that the decision concerning the request of the petitioner has been taken on the basis of the resolution of the meeting of the Principals of various nursing schools, held on 19.12.2014. Ext.P12 is the copy of the minutes of the aforesaid meeting of the principals of various nursing schools held on 19.12.2014 on the basis of which the impugned Ext.P9 rejection order has been passed by the 1[st] respondent. The petitioner also placed reliance on Ext.P13. Though a contention was raised by the 1[st] respondent W.P.(C). Nos.17529 of 2016 -5- that the request in Ext.P10 was rejected in the meeting of the 1[st] respondent Council held on 18.12.2015, the petitioner has placed reliance on Ext.P13. Ext.P13 is the minutes of the meeting of 1[st] respondent held on 18.12.2015 and in item No.20 thereof which deals with the request of the petitioner as per Ext.P10 indicates that it is endorsed therein as 'not considered'. In the light of these facts and circumstances the petitioner has filed the writ petition with following prayers:- i. Issue a writ of mandamus, order or direction to 1[st] respondent to accord sanction to close down the Priyadashini School of Nursing owned and conducted by the petitioner trust and to transfer the students to other recognized nursing schools. ii. Issue a writ of mandamus, order or direction directing the 1[st] respondent to consider Ext.P10, reconsidering its decision dated 17.10.2015 in additional agenda II (8), after giving opportunity of hearing to the petitioner; ii(a) to issue a writ of certiorari or other appropriate writ, order or direction quashing Ext.P9 & P11 so far as it relates to the petitioner's request. ii(b) to declare that the decision in Ext.P12 so far as it make a general rule that no transfer of students from 2014 admission in the schools of nursing and ANM Training Schools of Kerala as illegal and void” 3. The 1[st] respondent State Nursing Council has filed a counter affidavit dated 30.10.2015. It is stated therein that the impugned rejection as per Ext.P9 has been stated on the basis of W.P.(C). Nos.17529 of 2016 -6- the decision rendered in the meeting of the 1[st] respondent Council held on 17.10.2015 as per Ext.R1(a). The decision Ext.R1(a) was taken in pursuance of the meeting of Principals of Nursing colleges held on 19.12.2015 as per Ext.R1(b). Therein it was unanimously resolved that there would be, no transfer of students from 2014 admission (Resolution No.VII). It is also pointed out that the request of the petitioner for reconsidering Ext.P10 was also rejected in the meeting held on 18.10.2015 as evidenced from Ext.R1(c) etc. It is contended that the petitioner has not challenged Exts.P9 or R1(a) or R1(c) in the W.P.(C) and that therefore the reliefs sought for in the writ petition are liable to be rejected. On the substantive aspects, it is pointed out in para 6 of the counter affidavit that Exts.R1(a) and R1(c) decisions were taken to ensure that the nursing students who are admitted to various private nursing schools in state are not thrown out of their schools/colleges in the midst of the course and that if the private nursing colleges/schools are permitted to close down their institutions in the midst of the course for some reasons or the other, the students undergoing course in such colleges will not be in a position to secure admission in any other colleges and will be W.P.(C). Nos.17529 of 2016 -7- literally thrown into streets which cannot be permitted in public interest. 4. After the filing of the aforesaid counter affidavit of the 1[st] respondent the petitioner has amended the pleas in the writ petition by producing Exts.R1(a), R1(b) and R1(c) as Exts.P11, P12 and P13 respectively in the amended writ petition and new amended prayers have been incorporated to seek the challenge against Exts.P9, P11 and P12. 5. The petitioner has clearly averred in para 5 of amended Writ Petition that the Principal of another nursing college, viz., Malik Deenar Nursing School Kasaragod has informed the petitioner's institution that the said nursing school is ready to admit the remaining students in the petitioner's institution now coming to 6 in number and that 30 vacancies are available within the sanctioned intake so as to accommodate the students of the petitioner's college. Reliance in that regard is placed by the petitioner in Exts.P6 letter dated 17.09.2016 issued by the Principal of the said school. Earlier this Court has passed an order on 20.09.2016, directing the Principal of Malik Deenar Nursing College, Kasaragod to be impleaded as Additional respondent W.P.(C). Nos.17529 of 2016 -8- No.11 in the writ petition and also directed to issue notice to the party who was often directed to file an affidavit as to whether the said nursing school has sanctioned vacancies and whether they are willing to accommodate the six students of the petitioner's school. 6. The additional respondent 11 has entered appearance through Shri V. Hareesh Kumar learned Advocate. The said party has filed counter affidavit dated 28.09.2016, wherein it is stated that the sanctioned intake capacity of the 11[th] respondent nursing school is 50 students per year for the GNM course. It is averred therein that in the year 2012, only 18 students could be admitted and 32 seats were vacant and in 2013, only 14 students are admitted and the remaining 36 seats went unutilised. It is stated that in the academic year 2014, only 20 students out of the sanctioned in take capacity of 50 students were given admission and 30 seats are vacant for the 3[rd] year of the GNM course run by the 11[th] respondent which commenced in the year 2014. It is further pointed out that it is learned that six students remaining in the petitioner's nursing school are in the final year and that the 11[th] respondent is willing to admit those six students in the final year W.P.(C). Nos.17529 of 2016 -9- course which is to commence in the month of October 2016 and that 11[th] respondent has no difficulty in admitting the said students in their school and that the course offered by the learned respondent nursing school is having affiliation with the 1[st] respondent and the 3[rd] respondent. The aforementioned six subsisting students in the petitioner's nursing school are contesting respondents 4 to 9 who said to be prosecuting their studies in the final year and it is further pointed out that 10[th] respondent has already left the course from the petitioner's institution. 7. Heard Shri. O.V. Maniprasad, learned counsel appearing for the petitioner Shri. N. Raguraj learned Standing counsel appearing for Respondents 1 and 2 (Kerala Nursing Council Authorities) and Dr. Abraham P. Meachinkara, learned Standing Counsel appearing for R3 and Shri Saju J. Panicker learned counsel appearing for contesting respondents 4 to 10 and Shri. v. Hareesh Kumar learned counsel appearing for R11. 8. It is not in dispute that the 1[st] respondent Indian Nursing Council has already withdrawn the recognition accorded to the petitioner's nursing school for the conduct of GNM course W.P.(C). Nos.17529 of 2016 -10- and that the name of the petitioner's nursing school has already been deleted from the official website of 3[rd] respondent Council. It is also common ground that there are no statutory provisions which governs the field in the matter of the closure of nursing institutions at the instance of the management. It is now well established that persons like the petitioner have the fundamental right as per Article 19(I)(g) of the Constitution of India to establish educational institution, subject to reasonable restrictions that may be prescribed in the matter. The corollary of the same is that such a person will also have the fundamental right to close down the said institution, subject to any reasonable restriction that may be imposed by the law. When the 1[st] respondent Indian Nursing Council has withdrawn recognition to the nursing school, it is only just and fair that the request of the petitioner for closing down the institution is considered, but at the same time, after ensuring that the interest of the subsisting students studying in the institution is not detrimentally affected, so that steps are taken by the concerned authorities to accommodate such students as against vacancies in other recognized nursing schools, provided such vacancies arise within the sanctioned intake capacity of the W.P.(C). Nos.17529 of 2016 -11- nursing school concerned. Therefore, the stand taken in the impugned Ext.P9 rejection order that the petitioner is bound to continue the nursing schools until the completion of nursing course by all the students concerned, will not be the legally correct approach in a matter like this. The authorities like respondents 1 to 3 are bound to consider such request and ascertain whether there are vacancies within the sanctioned intake capacities alloted to other recognized nursing schools, so that the students of such institutions who face withdrawal of recognition are accommodated and their interest for prosecuting the future studies is adequately met. Such an approach is not forthcoming for the stand taken in Ext.P9 by the 1[st] respondent. Moreover, the decision reflected in Ext.P9 judgment order is on the basis of Ext.P11 which is not a decision taken on the strength of any statutory rules but it is only a decision taken in the meeting of all the principals of various recognised nursing colleges in the state. In the light of these aspects, this Court consider is of the considered opinion that the outright rejection of the petitioner's request as per Ext.P9 is not legal and proper and the same deserves judicial interdiction as the matter warrants reconsideration. Moreover, the 11[th] respondent W.P.(C). Nos.17529 of 2016 -12- institution has filed and affidavit before this Court that there are now only 20 students as against the sanctioned strength of 50 seats in the 3[rd] year of the course and that the said college is willing to give admission to all the six subsisting students in the petitioner school and that the 3[rd] year of the GNM course will commence in October, 2016. It is directed that the 1[st] respondent will verify as to the exact number of subsisting students in the petitioners college and their details and also as to whether there are vacancies with the sanctioned strength in the 3[rd] year course run by the 11[th] respondent nursing school. The petitioner and the 11[th] respondent will file a detailed submission in that record for 1[st] respondent giving all the details in that regard and thereupon the competent authorities of the 1[st] respondent may take steps to ascertain the correctness of the same and if it is found that there are sanctioned vacancies in the respondent institution to accommodate all the subsisting students in the petitioner's nursing school, then necessary permission should be granted for accommodating those balance students of the petitioner's nursing school in the 11[th] respondent institution. As the 3[rd] year of the GNM course will commence in October 2016, expeditious steps in W.P.(C). Nos.17529 of 2016 -13- that regard should be taken by all the parties. The 1[st] respondent will take necessary decision as directed in the matter within two weeks from the date of receipt of the requisite details from the petitioner and the 11[th] respondent. Shri. N. Raghuraj standing counsel appearing for the 1[st] respondent submits that this Court should ensure that the interests of the petitioner's students are fully taken care of, in as much as the 11[th] respondent institution should not be in a position to demand more fees from the petitioner's students than the one stipulated in the petitioner's college as far as the final year of the course is concerned. To this submission, Shri. O.V. Maniprasad learned counsel appearing for the petitioner submits that the students concerned need to pay fees to the 11[th] respondent nursing school only at the rate as stipulated in the petitioner's nursing school and if at all any higher amount is demanded by the 11[th] respondent college by way of fee, then the differential amount will be paid by the petitioner. The above said undertaking is recorded and it is ordered that all parties concerned including the petitioner and the 11[th] respondent shall abide by this undertaking, so as to ensure that the interest of the students are not in any way detrimentally affected. As the W.P.(C). Nos.17529 of 2016 -14- 3[rd] year of the GNM course is to commence in October 2016, it is ordered in the interest of justice that the 11[th] respondent should give provisional admission to the aforesaid six students of the petitioner's institution, so that they do not miss any class in the meanwhile due to any delay that may be taken in the above said decision making process. Needles to say such provisional admission will be subject to the decision to be taken by the 1[st] respondent, as directed as above. With these directions and observations the Writ petition (Civil) is disposed of. **ALEXANDER THOMAS, JUDGE** SKV