The Principal, Mercy College of Nursing Valakom v State of Kerala and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE VIJU ABRAHAM`** ``` WEDNESDAY, THE 6[TH] DAY OF DECEMBER 2023 / 15TH AGRAHAYANA, 1945 ``` ## **`WP(C) NO. 36254 OF 2023`** ## **`PETITIONER:`** ``` THE PRINCIPAL, MERCY COLLEGE OF NURSING VALAKOM, KOTTARAKKARA, KOLLAM DISTRICT, PIN - 691532 ``` ``` BY ADVS.GEORGE POONTHOTTAM (SR.) NISHA GEORGE, KAVYA VARMA M. M. ``` ## **`RESPONDENTS:`** - **`1 THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF HEALTH AND FAMILY WELFARE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001`** - **`2 KERALA NURSES AND MIDWIVES COUNCIL RED CROSS ROAD, THIRUVANANTHAPURAM, REPRESENTED BY THE REGISTRAR, PIN - 695035`** - **`3 KERALA UNIVERSITY OF HEALTH SCIENCES MEDICAL COLLEGE P.O., MULANKUNNATHUKAVU, THRISSUR, REPRESENTED BY THE REGISTRAR, PIN - 680596`** - **`4 INDIAN NURSING COUNCIL 8TH FLOOR, NBCC CENTRE, PLOT NO.2, COMMUNITY CENTRE, OKHLA PHASE -I, NEW DELHI, REPRESENTED BY ITS SECRETARY, PIN - 110020`** - **`5 V. BEENA, COUNCIL MEMBER, KERALA NURSES AND MIDWIVES COUNCIL, RED CROSS ROAD, THIRUVANANTHAPURAM, PIN - 695035`** ``` R2 BY ADV.N.REGHURAJ R3 BY ADV. SRI.P.SREEKUMAR ABRAHAM P.MEACHINKARA ``` WP(C) No.36254 of 2023 2 ## **`OTHER PRESENT:`** ``` GP - SYAMANTHAK B.S. ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C) No.36254 of 2023 3 ## **VIJU ABRAHAM, J.** **................................................................. W.P (C) No.36254 of 2023 .................................................................** Dated this the 6[th] day of December, 2023 ## **JUDGMENT** The above writ petition is filed seeking to quash Exts.P13 and P18 and for other consequential reliefs. 2. Brief facts necessary for the disposal of the writ petition are as follows: Mercy College of Nursing Valakom, of which the petitioner is the principal, is a 300 bed hospital having all specialities of modern medicine and in the year 2006, B.Sc Nursing program was started in the college with the NOC issued by the Government, approved by the Kerala Nurses and Midwives Council (KNMC) and affiliated to the 3[rd] respondent University. Government by Ext.P1 increased the intake capacity from 40 to 50. Later on by Ext.P2 the said intake was enhanced to 60. In 2010, the 3[rd] respondent University came into existence and the said University also granted affiliation to the B.Sc Nursing programme with an intake of 60 seats. By Ext.P3 the 4[th] respondent granted an annual intake of 75 seats. The said suitability for having 75 seats was followed in the subsequent years also as is evident from Exts.P4 to P7. The 3[rd] respondent University has also gave affiliation orders in favour of the college for a total intake of 60 WP(C) No.36254 of 2023 4 seats as is evident from Exts.P8 to P12 and by Ext.P13 the intake was reduced to 54 seats. It is contended that the Kerala State Nursing Council has also conducted inspection and granted permission for intake of 70 seats as per Exts.P14 to P17. Petitioner contended that after Ext.P17 order was issued a surprise inspection was conducted by a nominated council member, a person with no qualification to conduct the inspection along with an Associate Professor in a nursing college. On the basis of a further inspection conducted by an incompetent committee, Ext.P18 order was issued whereby the intake was reduced to 30 seats. Petitioner on the strength of Ext.P19 which is a copy of the “Nurses and Midwives Act, 1953” (hereinafter referred to as the “Act”) would contend that the council has no power to conduct the inspection and to issue orders or permission prescribing intake in a college other than the power to recognise the institution as provided under Section 26 of the Act. Petitioner also relies on Kerala Nurses and Midwives Rules, 1972 which is produced as Ext.P20 and contends that the said Rules are essentially dealing with the modes of election of council members. Petitioner submits that Ext.P18 issued on the basis of an inspection conducted by an incompetent committee is liable to be interfered with. Petitioner would contend that as long as the institution has a valid recognition for running a course, there is no legal necessity mandating and obliging the institute to ask for yearly permission of the WP(C) No.36254 of 2023 5 State council except when increase in intake is applied for the course. It is in the said circumstances petitioner has approached this Court challenging Ext.P13 whereby the intake was reduced by the 3[rd] respondent University to 54 and Ext.P18 whereby the intake was reduced to 30 by the 2[nd] respondent. 3. A detailed statement has been filed by the 2[nd] respondent wherein a preliminary objection was raised that the writ petition is liable to be dismissed on the ground of suppression of material facts. It is contended therein that the petitioner had conveniently chosen to conceal the communication between him and the 2[nd] respondent subsequent to Ext.P18 order. It is further contended that a perusal of Ext.P17 of the 2[nd] respondent would reveal that what has been accorded is only a conditional affiliation to the petitioner’s college subject to rectification of the deficiencies detailed therein as per resolution dated 26.08.2022. The shortcomings/violations identified by the inspectors during the inspection were clearly enumerated in paragraph 2 of Ext.P17 order. It is specifically mandated therein that the management should obtain separate orders from the 2[nd] respondent to admit the next batch of students during the academic year 2023-24. As regards the power of 2[nd] respondent to conduct inspection, etc., the learned standing counsel would rely on clause 83 of Ext.P20 which deals with the recognition of institutions for training WP(C) No.36254 of 2023 6 nurses, midwives, auxiliary nurse-midwives, and health visitors. Clause 83(1) mandates that the council shall from time to time, approve and recognize institutions which in its opinion are competent to train nurses and other categories mentioned above and Clause 83(2) mandates that for the said purpose, the institution should satisfy the conditions specified in the regulations made by the council under Section 36 for training and examination of nurses and others. It is further provided in Clause 83(3) that every training institution shall provide full facilities for inspection by the representative of the council if and when so directed by the council. Clause 84 mandates that if on inspection it is found that the training in the institute is not properly carried out, or any direction or suggestion of the council is not implemented the council is well within its powers to withdraw the recognition and report the said fact to the Government. On the basis of the same, the 2[nd] respondent would contend that they have ample power to conduct inspection in the petitioner’s institution. On the basis of the directions in Ext.P17, the petitioner made a request to conduct an inspection for continuing the affiliation by remitting the requisite fee along with a letter dated 16.01.2023. Pursuant to that the 2[nd] respondent council appointed a commission consisting of three inspectors, ie. the Principal of Josco College of Nursing, Alappuzha; the Assistant Professor, Govt. Nursing College, Kollam and the President of the 2[nd] respondent council and WP(C) No.36254 of 2023 7 the commission conducted an inspection and submitted a report dated 21.03.2023 before the 2[nd] respondent wherein various shortcomings/defects in the infrastructural facilities provided by the petitioner and other aspects including the shortcomings with respect to staff of the nursing college were elaborated. On a consideration of the said report, the 2[nd] respondent vide resolution dated 16.05.2023 resolved to accord sanction to the petitioner to admit B.Sc Nursing students during the academic year 2023-24 after rectifying the deficiencies. Thereafter petitioner has filed a compliance report claiming that the defects pointed out by the commission have been cured by them. The 2[nd] respondent after examining the compliance report on 20.06.2023 resolved to conduct a surprise inspection in the petitioner's college to ascertain as to whether the assertions in the compliance report are factually correct. The surprise inspection was conducted by a team deputed for the purpose which comprised of an Associate Professor, Government Nursing College, Thiruvananthapuram and the 5[th] respondent as a representative of the 2[nd] respondent. It is submitted that the inclusion of the 5[th] respondent in the team of inspectors was in tune with the relevant provisions of the statute. The report of the said team of inspectors revealed grave defects/shortcomings in the functioning of the petitioner's nursing college. The basic requirement for running a nursing programme was WP(C) No.36254 of 2023 8 found lacking in the surprise inspection. The report of the inspectors who conducted the surprise inspection was placed before the 2[nd] respondent council in its meeting held on 13.07.2023 in which it was resolved to issue a show cause notice to the petitioner. The petitioner has conveniently chosen not to produce the said show cause notice which details serious deficiencies in the facilities provided by the petitioner. Ext.R2(a) is the show cause notice dated 29.07.2023 which enumerates various deficiencies, some of which are very serious in nature warranting stringent action against the college management. To Ext.R2(a) show cause notice petitioner again submitted a compliance report claiming that the defects pointed out in the show cause notice are not serious and they have rectified the same. The 2[nd] respondent council on careful examination of Ext.R2(a) and the reply of the petitioner came to the conclusion that the petitioner's college did not satisfy the requirements of a nursing college with an intake of 70 students in terms of the guidelines issued by the Indian Nursing Council as well as the guidelines issued by the 2[nd] respondent council on 05.08.2023 and thereupon the 2[nd] respondent resolved to reduce the number of students in the B.Sc nursing programme conducted by the petitioner's college from 70 to 30 as per Ext.P18 order. Ext.P18 order has been issued on valid grounds as is evident from Ext.R2(a) show cause notice. It is further submitted that the Managing Director of WP(C) No.36254 of 2023 9 the petitioner's college of which the petitioner is the principal however chose to make Ext.R2(b) request dated 14.09.2023 before the 2[nd] respondent to reconsider the application for affiliation and to accord sanction for intake of students as in the previous years. In the said letter the Managing Director of the petitioner assured that they will strictly follow the guidelines of the Government or University and also the norms prescribed by the Indian Nursing Council and the 2[nd] respondent for conducting nursing programme. Acting on the said request the 2[nd] respondent council took a lenient view and resolved to conduct another inspection in the petitioner's college for which a commission comprising of the Associate Professor of the Government College of Nursing, Thiruvananthapuram and Assistant Professor, Government College, Alappuzha was appointed to conduct a surprise inspection in the petitioner's college and the said commission conducted a surprise inspection in the petitioner's college on 30.10.2023. In the course of inspection, the commission found that as per the hospital records the inpatients status as on the day of inspection was 160. However, on physical inspection, it was found that only three out of 160 were genuine patients. All the other persons were institutes from Gandhi Bhavan, Pathanapuram (74 nos.) and 84 were residents of a destitute home run by the petitioner's hospital in collaboration with Gandhi Bhavan. On examination, it was found that WP(C) No.36254 of 2023 10 none of the destitute were found to have any significant ailment and that they were staying there for some time. In the inspection, it was also found that the inpatient register was not properly maintained and operation theatre and labour rooms were found not functioning and basic support facilities like lab, X-ray machine, etc. were not found in the petitioner's hospital. Apart from the serious shortcomings with regard to the facilities provided by the nursing college, shortage in faculty was also found during the inspection. It is contended that the inspections were conducted by the 2[nd] respondent as requested by the petitioner and now they have challenged the very same authority of the council to conduct inspection. Learned counsel appearing for the 2[nd] respondent relying on the judgment in **Lord Shiva Birajman in H.B.Yogalaya and another v. State of U.P. and others, 2004 KHC 1995** would submit that disputed questions of fact should not be adjudicated upon in the absence of sufficient pleadings on these facts. The learned counsel would contend that the inspection team found various discrepancies, but the petitioner has taken a different stand in the reply affidavit filed and when facts are disputed, the court cannot adjudicate the same. As regards the power of the 2[nd] respondent to conduct inspection and fix the number of seats, they rely on the judgment in **National Medical Educational Charitable Trust v. Kerala Nursing and Midwifery Council, 2006(2) KLT 612** and WP(C) No.36254 of 2023 11 ## **Velayudhan Memorial Trust v. State of Kerala, 2010 (3) 367 (FB).** 4. A detailed reply affidavit has been filed by the petitioner in response to the statement filed by the respondents wherein it is reiterated that a perusal of Exts.P19 and P20 would show the powers of the 2[nd] respondent in fixing the intake are not discernible from the statement filed by the 2[nd] respondent. It is contended that as far as the University is concerned, in Section 50 specific powers have been provided and in view of the fact that the statute does not prescribe any power to fix the intake in respect of the course in question, the fixation in the matter of intake of students as is done in Ext.P18 is absolutely without any basis. The inspection was conducted by the 2[nd] respondent on 21.03.2023 and that by Ext.P25 certain defects were notified to them and in response to which Ext.P26 reply was submitted. It is thereafter that a surprise inspection was conducted, based on which Ext.P18 order has been issued. Petitioner has produced Ext.P27 day book in respect of the college for the days 10.07.2023 and 11.07.2023. Petitioner would contend that in respect of Ext.R2(a) show cause notice produced along with the statement filed by the 2[nd] respondent, Ext.P29 detailed reply was submitted. It is the further contention of the petitioner that in addition to the parent hospital having 100 beds, the institution can take affiliation with other hospitals if the required learning facilities are not available in the parent hospital and thus the WP(C) No.36254 of 2023 12 petitioner’s college has been affiliated with the various Government hospitals as is evident from Exts.P30 to P32and P35 and the college has affiliation with other hospitals as is evident from Exts.P33 and P34. Based on this, it is the contention of the petitioner that for evaluating the facilities of a college, the authorities are required to evaluate the facilities available in the affiliated hospitals also and the bed strength of the said hospitals cannot be ignored. Petitioner would contend that in the case of Co-operative College of Nursing, Peroorkada, they do not even have a parent hospital, but it is affiliated to the District Hospital, Thiruvananthapuram. As regard the presence of inmates of Gandhi Bhavan in the college at the time of the surprise inspection, it is contended that the Gandhi Bhavan is catering the needs of large number of destitutes and free treatment is provided by the petitioner's hospital for these destitutes and that is the reason for their presence in the hospital at the time of inspection. It is further contended that there are other blocks also in the hospital that were not visited by the inspectors and they gave an incomplete report containing untrue facts. It is further submitted that the hospital was fully taken over by the district administration during Covid times and large-scale damage has been caused to the hospital building, rooms and installations and the renovation work is going on. 5. I have considered the rival contentions of the parties. WP(C) No.36254 of 2023 13 6. By Ext.P13 order the 3[rd] respondent reduced the intake of students from 60 to 54, specifically finding in the inspection conducted by the University that the inpatient of the parent hospital is insufficient for an intake of 60 students and also certain other deficiencies as well. By Ext.P18 order, 3[rd] respondent reduced the intake of students for the academic year 2023-24 to 30 seats. Petitioner contended that 3[rd] respondent has no power to reduce the intake of students and further that Ext.P18 order was issued based on an inspection conducted by a team consisting of 5[th] respondent also and the said respondent is incompetent to be part of an inspection team going by Ext.P21 guideline for conducting inspection which mandates that there shall be two inspectors from the panel of adhoc inspectors approved by the council and the inspector should have 8 to 10 years of teaching experience in a college of nursing after M.Sc. Nursing, which the 5[th] respondent does not possess. To the said contention the 2[nd] respondent would reply that going by Clause 83 of Ext.P20, i.e., Kerala Nurses and Midwives Rules 1972, the Council has ample power to conduct the inspection and Clause 83(3) mandates that every training institute shall provide full facilities for inspection by the representative of the Council if and when so desired by the Council and the 5[th] respondent was part of the inspection team being a member of the 2[nd] respondent Council and fully empowered to be part of the inspection WP(C) No.36254 of 2023 14 team. It is further contended that the power of the 2[nd] respondent Council to recognize or approve the institution was considered by this court in **National Medical Educational Charitable Trust** ’s case cited supra wherein it is held that recognition or approval of institutions is essentially a function of the State Council. Paragraph 10 of the judgment reads as follows: _“10. Going by the above mentioned provisions of the Act, I feel that the Act does not empower the Central Council to deal with recognition or approval of institutions, imparting education in Nursing. The function of the Central Council, is mainly concerned with the recognition of qualifications, for the purpose enrolment in the State Register. It also enables the Central Council, to de-recognize any recognised qualification awarded by any authority in view of the provisions contained in clause (a) of sub-s.(1) of S.14 read with clause (a) of sub-section (3) thereof. In the case of institutions, like the institution of the petitioner, the power of the Central Council in the light of clause (b) of sub-s.(1) of S.14 read with clause (b) of subs.(3) thereof, is limited to de-recognising the qualification obtained from such institutions in other States. Even after the disapproval of the Central Council, the said qualification remains valid for the parent State. Recognition or de-recognition of institutions, like that of the petitioner, imparting training in nursing, does not come under the purview of the Indian Nursing Council Act, 1947. But, the power to recognise the qualifications, may confer incidental or ancillary power to prescribe the minimum facilities to be provided for, in the Nursing institutions. So, by virtue of the regulation making power contained in S.16(1) of the above said Act, the Central Council may prescribe the physical and clinical facilities that may be provided in an institution. The same is only for the purpose of deciding whether the training imparted in that institution, is upto the mark to enjoy the recognition_ WP(C) No.36254 of 2023 15 _for the qualification awarded pursuant to the training. Recognition or approval of institutions is essentially the function of the State Nursing Council. S.14(1)(b) of the Act also recognises the said position.”_ _(underline supplied)_ ## 7. The issue was again considered by the Full Bench of this Court in **Velayudhan Memorial Trust** ’s case cited supra, which held in paragraphs 20, 21 and 22 as follows. _“20.In our view, the question was earlier considered by a learned Judge of this Court in National Medical Educational Charitable Trust v. Kerala Nursing and Midwifery Council (2006 (2) KLT 612). At paragraph 10 of the said judgment the learned Judge categorically held that the 1947 Act does not empower the National Council to deal with the aspects of recognition or approval to institutions imparting education and Nursing. Paragraph 10 reads as follows:_ _“10. Going by the above mentioned provisions of the Act, I feel that the Act does not empower the Central Council to deal with recognition or approval of institutions, imparting education in Nursing. The function of the Central Council, is mainly concerned with the recognition of qualifications, for the purpose of enrollment in the State Register. It also enables the Central Council, to derecognise any recognised qualification awarded by any authority in view of the provisions contained in clause (a) of sub-s (1) of S.14 read with clause (a) of sub-s (3) thereof. In the case of institutions, like the institution of the petitioner, the power of the Central Council in the light of clause (b) of sub-s (1) of S.14 read with clause (b) of sub-s (3) thereof, is limited to de-recognising the qualification obtained from such institutions in other States. Even after the disapproval of the Central Council, the said qualification remains valid for the parent State. Recognition or de-recognition of institutions, like that of the petitioner, imparting training in nursing, does not come under the purview of the Indian Nursing Council Act,_ WP(C) No.36254 of 2023 16 _1947. But the power to recognise the qualifications, may confer incidental or ancillary power to prescribe the minimum facilities to be provided for, in the Nursing institutions. So, by virtue of the regulation making power contained in S.16(1) of the above said Act, the Central Council may prescribe the physical and clinical facilities that may be provided in an institution. The same is only for the purpose of deciding whether the training imparted in that institution, is upto the mark to enjoy the recognition for the qualification awarded pursuant to the training. Recognition or approval of institutions is essentially the function of the State Nursing Council. S.14(1)(b) of the Act also recognises the said position"_ _21. The learned Judge took into consideration the functions of the Council formed under the Kerala Act, 1953 and came to the conclusion that both the enactments deal with different facets of the matter. On an examination of the scheme of both the enactments we do not see any reason to take a view different than the one taken in the abovementioned judgment._ _22. We are of the opinion that having regard to the scheme of both the abovementioned enactments, the authority of the National Council is limited to the establishment of standards of education which includes prescribing the appropriate syllabus, norms of training, prescription of appropriate infrastructure for conducting the courses etc. whereas whether a particular institution which proposes to impart education in Nursing etc. is to be recognised having regard to the norms and standards prescribed by the National Council and also having regard to the availability of the infrastructure etc. of a particular institution is a matter to be decided by the Council established under the Kerala Act X of 1953. If that is the legal position emerging from the examination of the two enactments referred to earlier, we are of the opinion that Cls. (2) and (6) of Reg.78 in so far as they purport to obligate the institutions proposing to impart training in Nursing and allied courses to seek prior approval of the National Council are ultra wires the authority of the National Council. That being the case the various communications issued by_ WP(C) No.36254 of 2023 17 _the National Council, purporting to permit each of the appellants herein to commence various courses in Nursing with an intake of students specified as against each of those courses, in our opinion, are without any basis in law. The appropriate authority to consider such applications is the State Council established under Act X of 1953 of the State of Kerala though there is a statutory appeal against such authority provided under S.27 of the Act X of 1953 of the State of Kerala. No doubt, the State Council while granting or declining permission/approval for commencement of any training course in Nursing or allied courses covered under the abovementioned two enactments is bound by the norms and standards stipulated by the National Council.” (underline supplied)_ In view of the above, I am of the opinion that the 2[nd] respondent has ample power to conduct inspection and also to fix the number of intake taking into consideration the facilities available, since they are empowered to recognise or approve the institution and grant permission/approval for commencement of any training course in Nursing or allied courses. 7. It is further contended by the 2[nd] respondent in the statement that even though by Ext.P17 order the 2[nd] respondent has granted conditional affiliation with an intake of 70 students, in Ext.P17 itself the Council has resolved to grant sanction for admission of students after rectifying the deficiencies and the conditional affiliation was on a condition that the deficiencies are rectified. On a request made by the petitioner for conducting an inspection, a commission was appointed WP(C) No.36254 of 2023 18 and they submitted a report dated 21.03.2023 wherein various short comings/defects were noted. Thereupon, the 2[nd] respondent by resolution dated 16.05.2023 resolved to sanction admission of students for academic year 2023-24 after rectifying the deficiencies. On submission of a compliance report pointing out that the defects have been cured, the 2[nd] respondent resolved to conduct a surprise inspection and a report was submitted pointing out grave defects/short coming in the functioning of the college and thereupon Ext.R2(a) show cause notice was issued to the petitioner which has not been produced along with the writ petition. A perusal of Ext.R2(a) would reveal that only one inpatient was present on the day of inspection, the hospital was under renovation and operation theatre and labour room were not functioning and not opened since 2018, casualty register and IP register showed patients without any IP number, staff nurses had two shift duties, census in the IP register was written with pencil for many months, fake day reports and night reports were found and casualty register also showed fake patients without IP and OP number and there were no sufficient teaching staffs. Subsequent to Ext.R2(a) also, the petitioner again submitted a compliance report and after considering all the materials, Ext P18 order was issued. Thereafter, the college submitted Ext.R2(b) request seeking to reconsider their application for affiliation and for sanction regarding intake of students WP(C) No.36254 of 2023 19 and thereupon another commission was appointed to conduct a surprise inspection and an inspection was conducted on 30.10.2023 and in the said inspection it was found that as per the hospital records, the inpatient status on the day of inspection was 160 and on physical inspection it was found that only 3 out of 160 were genuine patients and 74 persons were destitutes from Gandhi Bhavan, Pathanapuram and 84 were residents of destitute home run by the petitioner and on examination it was found that none of the destitutes were having any significant illness and it was also found that IP registers were not properly maintained and OT and labour rooms were not found functioning and basic support facilities like labs, x-ray machines were not found in the hospital and there was shortage in faculty. Though these details were not stated in the writ petition, in the reply affidavit filed, the petitioner produced various documents including a reply submitted to Ext.R2(a) show cause notice. The fact that only one inpatient was there in the room/wards visited by the inspectors was admitted, but alternatively it was contended that 170 odd admissions, i.e., inmates of Gandhi Bhavan who were present for palliative treatment was not taken into account by the inspection team. Ext.R2(a) show cause notice was pursuant to the inspection conducted on 11.07.2023 and Ext.P25 day report of 10.07.2023 which is produced along with the reply affidavit show that there are about 10 patients WP(C) No.36254 of 2023 20 admitted in the hospital on 10.07.2023, whereas in the reply to the show cause notice produced as Ext.P29, the petitioner would admit that there was only one patient in the room/ward which is admittedly contradictory. Even though, the petitioner has raised a contention that the 5[th] respondent who is a part of the inspection team was incompetent to be an inspector, going by Ext.P21 guidelines which mandates that there should be two inspectors having a requisite qualification in the inspection team, the contention of the 2[nd] respondent is that the 5[th] respondent was part of the inspection team as provided in Rule 83(3) of Ext.P20 Rules and therefore competent to be part of the inspection team. Even otherwise, after the issuance of Ext.P18, which is alleged to be based on a report by an incompetent inspection team, the statement filed by the 2[nd] respondent would reveal that on the request made by the petitioner as Ext.R2(b), another surprise inspection was conducted by a commission comprising of an Associate Professor, Government College of Nursing, Thiruvananthapuram and Assistant Professor, Govt. College of Nursing, Alappuzha and in their report also serious allegations were raised, even regarding the genuineness of the patients and other anomalies. Therefore, it could be seen that a properly constituted team as provided in Ext.P21 guidelines also found the same deficiencies in the inspection conducted on 30.10.2023 which were found in the WP(C) No.36254 of 2023 21 inspection held on 11.07.2023, which led to the issuance of Ext.P18 order. Therefore, I am not inclined to accept the contentions of the petitioner based on Ext.P21 guidelines. The petitioner in the reply affidavit has also taken a contention that the college is also affiliated to Government hospitals as evident from Exts.P30 to P32 and P35 and further that the college has affiliation with other hospitals as is evident from Ext.P33 and P34 and based on the same it is contended that for evaluating the facilities of a college, the authorities are required to evaluate the facilities available in the affiliated colleges. The 2[nd] respondent has produced Ext.R2(c) which is the guideline issued by the 4[th] respondent for opening B.Sc. (N) College of Nursing which mandates that the following clinical facility should be provided which reads as follows: ## _“_ _**CLINICAL FACILITIES**_ |_I._|_College of nursing should_|_have a 100 bedded Parent Hospital._| |---|---|---| |_II._|_Distribution of beds in different areas/for 40 annual intake is_|| ||_Medical_|_30_| ||_Surgical_|_30_| ||_Obst. & Gynaecology 30_|| ||_Pediatrics_|_20_| ||_Ortho_|_10_| |_III._|_Bed Occupancy of the Hospital should be minimum 75%._|| |_IV._|_The size of the Hospital/Nursing Home for affiliation should not_|| |_be_|_less than 100 beds._|| - _V. Other Specialities/Facilities for clinical experience required are as follows:_ WP(C) No.36254 of 2023 22 _Major OT Minor OT Dental Eye/ENT Burns and Plastic Neonatology with Nursery Communicable disease Community Health Nursing Cardiology Oncology Neurology/Neuro-surgery Nephrology etc. ICU/ICCU_ _VI. Affiliation of psychiatric hospital should be of minimum 50 beds._ _VII. The Nursing Staffing norms in the affiliated Hospital should be as per the INC norms._ _VIII. The affiliated Hospital should give student status to the candidates of the nursing programme._ _IX. Maximum Distance between affiliated hospitals & institutions:-_ _a. Institutions generally can be in the radius of 15-30 kms. from the affiliated hospital._ _b. Hilly & Tribal area it can be in the radius of 30-50 kms. from the affiliated hospital._ _X. 1:3 student patient ratio to be maintained. XI. For the grant of 100 students minimum 300 bedded Parent Hospital is mandatory.”_ Even going by the said norms there be should be a 100-bedded parent hospital and the bed occupancy should be minimum 75 percent and among other facilities should have a major and a minor operation theatre. Going by Ext.R2(a) show cause notice and the findings in the inspection conducted on 301.10.2023, even the said criteria is not WP(C) No.36254 of 2023 23 satisfied. Further, in inspection it was found that there are serious anomalies in the functioning of the college including maintenance of records and regarding the inpatient details. The same anomalies were found by 2[nd] respondent even in the subsequent inspection conducted on 30.10.2023. Even in Ext.P29 reply there is no satisfactory explantation to the anomalies pointed in Ext.R2(a) show cause notice and no contention was raised in the reply regarding the clinical training underwent by the students of the petitioner’s college in the affiliated hospitals though a contention has been raised in the reply affidavit. 8. In view of the above, I find no reason to interfere with the orders impugned in this writ petition. However, it is made clear that petitioner will be free to approach the 2[nd] respondent after curing the anomalies pointed out in Ext.R2(a) and stated in the statement filed by the 2[nd] respondent and if such a request is made after curing the anomalies, the 2[nd] respondent shall cause and inspection by a commission consisting of a team of inspectors as provided in Ext P21 guidelines and take appropriate decision thereon in accordance with law. 9. The 2[nd] respondent is a statutory body and they have raised serious allegation that in the inspection conducted on 30.10.2023, 74 numbers of persons found in the hospital were destitutes from Gandhi Bhavan, Pathanapuram and 84 were residents from a destitute home run by the petitioner’s hospital in collaboration with Gandhi Bhavan and WP(C) No.36254 of 2023 24 on examination it was found that none of these destitutes were found to have any significant ailments and they were staying there for some time. Though in the reply affidavit petitioner has taken a stand that they were having various ailments and brought to the hospital at different times and even during midnight. Since allegations have been raised by statutory body like the 2[nd] respondent, this court is of the view that the allegations should be enquired and ascertained by the Government since taking care of the destitutes shall not be for any undue benefit to anyone. Therefore, there will be a direction to the Government, in the Social Welfare Department, to cause an enquiry into the matter and take appropriate action against the persons if any found responsible in the enquiry, of course after giving sufficient opportunity to substantiate the contentions of the parities concerned. Registry to forward a copy of the judgment to the Chief Secretary, Government of Kerala, Government Secretariate, Thiruvananthapuram for appropriate action on the direction given in paragraph 9 of the judgment **.** This writ petition is accordingly disposed of. Sd/- **VIJU ABRAHAM** **JUDGE** cks WP(C) No.36254 of 2023 25 ## **`APPENDIX OF WP(C) 36254/2023`** ``` PETITIONER EXHIBITS ``` ``` Exhibit -P1COPY OF THE ORDER ISSUED BY THE GOVERNMENT BEARING G.O.(MS)NO. 474/2008/H&FWD DATED 27.08.2008 Exhibit-P2TRUE COPY OF THE GOVERNMENT ORDER ENHANCING THE INTAKE FROM 50 TO 60 BEARING G.O.(MS)NO. 325/2009/H&FWD DATED 15.09.2009 Exhibit-P3TRUE COPY OF THE ORDER ISSUED BY THE INDIAN NURSING COUNCIL ON 11.09.2019 BEARING FILE NO. 18-16/3005 Exhibit-P4TRUE COPY OF THE ORDER ISSUED BY THE INDIAN NURSING COUNCIL ON 23.09.2020 BEARING FILE NO. 18-16/3005 Exhibit-P5TRUE COPY OF THE ORDER ISSUED BY THE INDIAN NURSING COUNCIL ON 16.11.2021 BEARING FILE NO. 18-16/3005 Exhibit-P6TRUE COPY OF THE ORDER ISSUED BY THE INDIAN NURSING COUNCIL ON 14.12.2022 BEARING FILE NO. 18-16/3005 Exhibit-P7TRUE COPY OF THE ORDER ISSUED BY THE INDIAN NURSING COUNCIL ON 14.07.2023 BEARING FILE NO. 18-16/3005. Exhibit-P8TRUE COPY OF THE AFFILIATION ORDER BEARING NO.151/1275/AC.1/2/2011/KUHS ISSUED ON 29.11.2011 BY THE 3RD RESPONDENT UNIVERSITY Exhibit-P9TRUE COPY OF THE ORDER NO.ACII/NSG/A3/2017/17772 DATED 26.10.2018 ISSUED BY THE 3RD RESPONDENT UNIVERSITY GRANTING AFFILIATION WITH AN INTAKE OF 60 SEATS DURING ACADEMIC YEAR 2018-19. ``` WP(C) No.36254 of 2023 26 ``` Exhibit -P10TRUE COPY OF THE ORDER OF AFFILIATION NO. ACII/NSG/A1/2018/15010 ISSUED BY THE 3RD RESPONDENT UNIVERSITY ON 12.06.2019 WITH AN INTAKE OF 60 SEATS FOR THE ACADEMIC YEAR 2019-20. Exhibit-P11TRUE COPY OF THE COMMUNICATION GIVEN BY THE UNIVERSITY GRANTING AFFILIATION FOR THE ACADEMIC YEARS 2021-22 BEARING ORDER U.O.NO. 983/2021/ACADEMIC/KUHS DATED 02.12.2021. Exhibit-P12TRUE COPY OF THE ORDER U.O.NO. 505/2022/ACADEMIC/KUHS DATED 16.05.2022 ISSUED BY THE 3RD RESPONDENT UNIVERSITY ``` - `Exhibit-P13 TRUE COPY OF THE ORDER BEARING U.O.NO. 1086/2023/ACADEMIC/KUHS ISSUED BY THE 3RD RESPONDENT UNIVERSITY GRANTING AFFILIATION ON 19.07.2023 FOR AN INTAKE OF 54 SEATS.` - `Exhibit -P14 TRUE COPY OF THE ORDER NO.G.1121/06/NC DATED 30.05.2019 ISSUED BY THE KERALA NURSES AND MIDWIVES COUNCIL GIVING PERMISSION FOR AN INTAKE OF 70 SEATS.` - `Exhibit -P15 TRUE COPY OF THE ORDER NO.G.1121/06/NC DATED 08.09.2020 ISSUED BY THE KERALA NURSES AND MIDWIVES COUNCIL WITH AN INTAKE OF 70 SEATS` - `Exhibit-P16 TRUE COPY OF THE ORDER NO.G.1121/06/NC DATED 21.06.2021 ISSUED BY THE KERALA NURSES AND MIDWIVES COUNCIL FOR THE YEAR 2021-22 WITH AN INTAKE OF 70 SEATS` ``` Exhibit -P17TRUE COPY OF THE ORDER NO.G.1121/06/NC DATED 26.08.2022 ISSUED BY THE KERALA NURSES AND MIDWIVES COUNCIL Exhibit -P18TRUE COPY OF THE ORDER NO.G.1121/06/NC DATED 05.09.2023 ISSUED BY THE KERALA ``` WP(C) No.36254 of 2023 27 ``` NURSES AND MIDWIVES COUNCIL ``` ``` Exhibit -P19A COPY OF THE NURSES AND MIDWIVES ACT 1953 [ACT X OF 1953] AS ON 20.01.1971 Exhibit-P20COPY OF THE KERALA NURSES AND MIDWIVES RULES, 1972 BEARING NOTIFICATION NO. 62312/G2/71/HD DATED 15TH JUNE 1972 ISSUED BY THE GOVERNMENT OF KERALA. ``` - `Exhibit-P21 TRUE COPY OF THE GUIDELINES FOR CONDUCTING INSPECTION OF TRAINING INSTITUTIONS BASED ON INC REGULATIONS DATED 19.04.2010 ISSUED BY THE 2ND RESPONDENT` - `Exhibit-P22 TRUE COPY OF THE GUIDELINES TO START A NURSING PROGRAMME DATED NIL ISSUED BY THE 2ND RESPONDENT` - `Exhibit-P23 COPY OF THE NOTIFICATION NO. 17 OF 2023 DATED 31.10.2023 ISSUED BY THE INDIAN NURSING COUNCIL.` - `Exhibit-P24 Copy of the Day Report on 22.03.2023 containing the closure of patient details as on 21.03.2023.` - `Exhibit-P25 True copy of the said communication No.G.1121/ 06/NC dated 26.05.2023 issued by the 2nd respondent` - `Exhibit-P26 Copy of the reply bearing No. 4230.MCN/23 dated 08.06.2023 along with the supporting documents issued by the petitioner college.` - `Exhibit-P27 Copy of the relevant pages of the day report of 11.07.2023 as well as that of 10.07.2023.` - `Exhibit-P28 Copy of the day duty report on 30.10.2023` - `Exhibit-P29 True copy of the reply bearing Ref.No. 4268.MCN/23 dated 01.08.2023 issued by` WP(C) No.36254 of 2023 28 ``` the petitioner college. ``` - `Exhibit-P30 True copy of the proceedings bearing Order No. A5-14116/2021/DMOHK dated 08.10.2021 issued by the District Medical Officer (Health), Kollam` - `Exhibit-P31 True copy of the proceedings bearing Order No. A5-6642/2022/DMOHK dated 26.05.2022 issued by the District Medical Officer (Health), Kollam` - `Exhibit-P32 True copy of the proceedings bearing Order No. A5-149092/2023/DMOHK dated 21.02.2023 issued by the District Medical Officer (Health), Kollam` - `Exhibit-P33 True copy of the said agreement executed on 11.11.2022 between the petitioner and the Taluk Headquarters Hospital, Punalur` - `Exhibit-P34 True copy of the agreement executed on 28.04.2023 between the petitioner and St. Gregarious Hospital, Parumala` - `Exhibit-P35 A copy of the proceedings bearing Order No. C4-31603/2022/DMO(H) dated 31.05.2023 issued by the District Medical Officer (Health), Thiruvananthapuram` - `RESPONDENT EXHIBITS` - `Exhibit R2(a) True photocopy of the show cause notice bearing No. G./1121/06/NC dated 29.07.2023 issued by the Registrar of the 2nd respondent Council.` - `Exhibit R2(b) True photocopy of the Request dated 14.09.2023 submitted by the Managing Director of the Mercy College of Nursing.` - `Exhibit R2[c] True copy of the GUIDELINES TO OPEN B.SC.[N] COLLEGE OF NURSING` WP(C) No.36254 of 2023 29 ``` DATED.20.4.2018 Published by the Indian Nursing Council ``` ``` Annexure R4(A) ``` ``` The copy of Indian Nursing Council (Minimum Pre-Requisites for Granting Suitability To Nursing Programs) Regulations, 2020 dated 12-03-2021 ```