Sree Anjaneya Medical Trust v State of Kerala and Kerala Nursing and Midwives Council and Indian Nursing Council

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR TUESDAY, THE 30TH DAY OF AUGUST 2016/8TH BHADRA, 1938 WP(C).No. 20664 of 2016 (G) --------------------------------------------- PETITIONER: SREE ANJANEYA MEDICAL TRUST, 4TH FLOOR, KANCHAS COMPLEX, OPP.INDOOR STADIUM, CALICUT-673 004, REPRESENTED BY ITS AUTHORIZED SIGNATORY DR.SUDHA ANIL. BY ADVS.SRI.P.SANJAY SMT.A.PARVATHI MENON RESPONDENTS: 1. STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY, MINISTRY OF HEALTH AND FAMILY WELFARE, GOVERNMENT OF KERALA, TRIVANDRUM. 2. KERALA NURSING AND MIDWIVES COUNCIL, RED CROSS ROAD, GENERAL HOSPITAL JUNCTION, TRIVANDRUM, REPRESENTED BY ITS REGISTRAR. 3. THE INDIAN NURSING COUNCIL, COMBINED COUNCILS BUILDING, KOTLA ROAD, TEMPLE GATE, NEW DELHI-110 002. R3 BY ADV. DR.ABRAHAM P.MEACHINKARA R2 BY ADV. SRI.N.RAGHURAJ R1 BY GOVERNMENT PLEADER SMT.K.R.DEEPA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18-08-2016, THE COURT ON 30-08-2016 DELIVERED THE FOLLOWING: ## **APPENDIX IN WP(C).No. 20664 of 2016 (G)** ## PETITIONER'S EXHIBITS: EXT. P1 TRUE COPY OF THE G.O.(Rt)NO.271/2011/H & FWD DATED 22/1/2011. EXT. P2 TRUE COPY OF THE ORDER DATED 14/8/2015. EXT. P2 (a) TRUE COPY OF THE REPRESENTATION DATED 17/11/2014. EXT. P3 TRUE COPY OF THE ORDER NO.294297/C3/15/H & FWD DATED 28/9/2015. EXT. P4 TRUE COPY OF THE ORDER NO.B/3036/2015/CNC DATED 16/11/2015. EXT. P5 TRUE COPY OF THE ORDER G.O.(MS)NO.35/2016/H&FWD DATED 9/2/2016. EXT. P6 TRUE COPY OF THE REPRESENTATION DATED 13/2/2016 EXT. P7 TRUE COPY OF THE LETTER F.NO.18-16/6969-INC/2729 DATED 23/5/2016. RESPONDENT'S EXHIBITS: NIL. /TRUE COPY/ P.S. TO JUDGE P.B.Suresh Kumar, J. ------------------------------------------ W.P.(C)No.20664 of 2016 G ------------------------------------------- Dated this the 30[th] day of August, 2016 ## **JUDGMENT** Exhibit P7 communication issued by the Indian Nursing Council ('the Council' for short) is under challenge in this writ petition. 2. The petitioner is a Nursing College. They are conducting B.Sc (Nursing) programme from the year 20112012 onwards with an intake of 40 students, after obtaining permissions from the State Government, the Kerala Nursing and Midwives Council as also the Council. On 14.08.2015, after making necessary upgradations in the infrastructure, the petitioner applied to the State Government for permission to enhance the intake of students for the programme from 40 to 100. Exhibit P2 is the application WPC 20664/16 2 submitted by the petitioner in this connection. Exhibit P2 application was forwarded by the Government to the office of the Director of Medical Education for inspection and report. Exhibit P3 is the communication issued by the Government in this connection. Thereupon, at the instance of the Director of Medical Education, a team of Doctors attached to Government Nursing College, Kozhikode, inspected the college of the petitioner and forwarded their report to the Government through the Director of Medical Education. Based on the said report, on 09.02.2016, the Government issued Exhibit P5 order, by which permission was granted to the petitioner to enhance the student intake from 40 to 70 from the academic year 2016-17, subject to the approval of the Council. 3. Going by the calendar of events fixed by the Council, applications for grant of approval for enhancement WPC 20664/16 3 of seats in Nursing Colleges for the academic year 2016-17 had to be submitted on or before 18.12.2015. The petitioner submitted the application for the said purpose before the Council on 17.12.2015. Unfortunately, since Government permission for the said purpose was not obtained till then, the application was submitted without the Government permission. Later, when Exhibit P5 order was issued by the Government, the petitioner forwarded Exhibit P5 also to the Council on 13.02.2016, along with Exhibit P6 communication. The request for approval submitted by the petitioner was, however, declined by the Council as per Exhibit P7 communication stating that the petitioner was required to produce Government permission along with the application on or before 18.12.2015 and since the application of the petitioner dated 17.12.2015 was not accompanied by the Government permission, the same WPC 20664/16 4 cannot be considered. The petitioner is aggrieved by Exhibit P7 order. 4. A statement has been filed on behalf of the Council on 22.06.2016. In the statement filed on 22.06.2016, it is reiterated that the last date for submission of the applications for approval to enhance the student intake for the academic year 2016-17 was 18.12.2015 and the permission of the Government which should have been enclosed along with the application was forwarded by the petitioner to the Council only on 13.02.2016. As such, according to the Council, the application of the petitioner could be treated only as one filed out of time. Later, an additional statement was filed by the Council on 30.06.2016. In the additional statement filed by the Council on 30.06.2016, it is stated that the Council publishes annual calendar of events under their Regulations allocating time WPC 20664/16 5 for each step and approval is granted strictly in accordance with the said calender of events. It is also mentioned in the additional statement by the Council that applications preferred by several others after the last date fixed for submission of the applications were also, in the circumstances, rejected by the Council. 5. Heard the learned counsel for the petitioner as also the learned counsel for the Council. 6. It is beyond dispute that going by the calender of events fixed by the Council, the applications for permission to enhance the student intake should have been preferred on or before 18.12.2015. It is seen that the petitioner has submitted the application for the said purpose within the said time limit. Nevertheless, the application of the petitioner is treated as one filed beyond the outer time limit for the reason that the petitioner has not produced the WPC 20664/16 6 permission granted by the Government for the said purpose along with the application. The short question, therefore, is whether the Council was justified in rejecting the application of the petitioner on that sole reason. It is seen that the petitioner has applied for permission of the Government as early as on 14.08.2015. In other words, the petitioner has applied for permission of the Government sufficiently early. The Government took almost 6 months to process the application submitted by the petitioner. As such, the petitioner cannot be blamed for having submitted the application without the permission of the Government, before the last date. The issue, therefore, is whether there is any requirement of law that the application before the Council shall be accompanied by the permission of the Government. No statutory provision is brought to my notice which stipulates that the application for approval before the WPC 20664/16 7 Council shall be accompanied by the permission of the Government. In so far as there is no statutory requirement that the application for approval shall be accompanied by the permission of the Government, it cannot be contended that the application can be rejected outright, on that reason. According to me, in the circumstances, the application submitted by the petitioner could be treated only as a defective one and the petitioner should have been given an opportunity to rectify the defect. It is beyond dispute that had the application submitted by the petitioner before the Council been processed before the Government issued Exhibit P5 order, a communication in the nature of Exhibit P7 would have been issued by the Council to the petitioner then and there. The Council has also no case in the statements filed in this matter that when Exhibit P5 order of the Government was received by the Council, all WPC 20664/16 8 other applications received for enhancement of seats have been processed. In other words, even before the Council processed the application submitted by the petitioner, the petitioner had forwarded the permission of the State Government. The impugned communication was issued by the Council long thereafter, on 23.05.2016. There is no contention in the statements filed on behalf of the Council as to the impediment, if any, in processing the application of the petitioner. The writ petition was filed challenging Exhibit P7 communication, on 16.6.2016. The specific case of the petitioner in the writ petition is that the Council is yet to start the inspection procedure for grant of approval for the academic year 2016-17. Ground E of the writ petition reads thus: “It may be pointed out that even now the Council is only taking steps to conduct inspections in institutions that have applied for establishing the course afresh and even those who have applied for enhancement of seats. WPC 20664/16 9 Since inspections are only underway now there is no reason why the application of petitioner be rejected citing the cut-off date.” This categoric statement of the petitioner is not seen controverted in the two statements filed on behalf of the Council. In the aforesaid facts and circumstances, I am of the view that the stand taken by the Council that the application submitted by the petitioner for approval cannot be treated as one filed within time, is unjust, unreasonable and arbitrary. 7. The learned counsel for the Council vehemently contended, relying on the decision of the Apex Court in **Priya Gupta v. State of Chhattisgarh and others** [(2012) 7 SCC 433], that the calendar of events published by statutory bodies like the Council shall be strictly followed. There cannot be any dispute at all to the said proposition. As noted above, the petitioner had submitted the application WPC 20664/16 10 before the Council well within the time. The issue in this case as to whether the Council is justified in treating the application of the petitioner as one filed beyond the outer limit. The decision of the Apex Court relied on by the learned counsel for the petitioner may not be relevant in the context of the said issue. The learned counsel for the Council has also contended, relying on the decision of the Apex Court in **National Council for Teacher Education and another v. Committee of Management and others** [(2006) 4 SCC 65] that the time limit fixed by the Regulations framed by statutory bodies in the nature of the Council shall be complied with by the applicants and the delay cannot be condoned. Nothing is placed on record to indicate that calender of events have been fixed by the Council by virtue of the provisions in any of the Regulations framed under the Nursing Council Act. Further, as noted above, the application of the WPC 20664/16 11 petitioner was admittedly, within the time limit prescribed. The objection of the Council as regards the application was only that the same was not accompanied by the permission of the State Government. In the said circumstances, according to me, the said judgment has also no application to the facts of this case. In the result, the writ petition is allowed. Exhibit P7 communication issued by the third respondent is quashed. The third respondent is directed to process the application submitted by the petitioner as referred to in Exhibit P7 and take a final decision in the matter, as expeditiously as possible, so as to enable the petitioner to admit additional strength of students during the current academic year itself, if permission is granted. P.B.Suresh Kumar, Judge tkv