IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 31ST MARCH 2010 / 10TH CHAITHRA 1932 WP(C).No. 315 of 2010(L) ----------------------------------- PETITIONER: ------------------- K.VELAYUDHAN MEMORIAL TRUST, POST BOX-13, CHERTHALA, REPRESENTED BY ITS DIRECTOR DR.V.V.PYARELAL. BY ADV. MR.GEORGE POONTHOTTAM. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF HEALTH & FAMILY WELFARE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. UNIVERSITY OF KERALA, REPRESENTED BY THE REGISTRAR, THIRUVANANTHAPURAM. 3. INDIAN NURSING COUNCIL, KOTLA ROAD, TEMPLE LANE, NEW DELHI-110 002, REPRESENTED BY THE SECRETARY. 4. KERALA NURSES & MIDWIVES COUNCIL, RED CROSS ROAD, THIRUVANANTHAPURAM, REPRESENTED BY THE REGISTRAR. R1 BY GOVT. PLEADER MR. A.J. VARGHESE, R2 BY MR.M.RAJAGOPALAN NAIR, SC, KERALA UTY., R3 BY MR. NOUSHAD THOTTATHIL, S.C, R4 BY MR..N.RAGHURAJ, S.C. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/03/2010, ALONG WITH W.P.(C). NO. 35566 OF 2009 AND CONNECTED CASES, THE COURT ON 31/03/2010 DELIVERED THE FOLLOWING: W.P.(C). NO.315/2010-L: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE JUDGMENT IN W.P.(C).NO.17298/08 DTD. 28/07/2008. EXT.P.2: COPY OF THE APPLICATION DTD. 24/12/07 FOR AFFILIATION OF NEW POST GRADUATE COURSES IN KVM COLLEGE OF NURSING DURING 2008-09. EXT.P.3: COPY OF THE LETTER NO. KVMCN/MSC/2007 DTD. 15/12/2007. EXT.P.4: COPY OF THE LETTER NO. AC.B.3/1320/08 DTD. 08/01/2008. EXT.P.5: COPY OF THE APPLICATION GIVEN TO THE INDIAN NURSING COUNCIL. EXT.P.6: COPY OF THE COVERING LETTER NO.KVMT/INC/MSC-N(2008-09) DTD. 22/01/08. EXT.P.7: COPY OF THE JUDGMENT IN W.P.(C).NO.3982/08 DTD. 15/02/2008. EXT.P.8: COPY OF THE COMMUNICATION NO. AC.B.3/2008 DTD. 31/05/2008. EXT.P.9: COPY OF THE COMMUNICATION NO. AC.B3/2008 DTD. 22/08/2008. EXT.P.10: COPY OF THE ORDER NO. 02/MAY/2009-INC DTD. 25/05/2009. EXT.P.11: COPY OF THE COMMUNICATION NO. G. 508/08/NC DTD. 28/04/2009. EXT.P.12: COPY OF THE G.O.(MS).NO.199/2009/H&FWD DTD. 25/06/2009. EXT.P.13: COPY OF THE REQUEST DTD. 01/06/09. EXT.P.14: COPY OF THE ORDER IN W.P.(C).NO.18199/2009 DTD. 07/08/2009. EXT.P.15: COPY OF THE REPORT OF THE KNMC INSPECTION CONDUCTED AT KVM COLLEGE OF NURSING ON 29/08/2009. EXT.P.16: COPY OF THE TEACHING FACULTY PROFILE. EXT.P.17: COPY OF THE REGULATIONS FRAMED AND ISSUED BY THE NURSING COUNCIL OF INDIA. EXT.P.18: COPY OF THE SYLLABUS AND REGULATIONS OF INDIAN NURSING COUNCIL. EXT.P.19: COPY OF THE LETTERS GRANTING AFFILIATION TO THE PETITIONER BY THE HOSPITALS. EXT.P.20: COPY OF THE INTERIM ORDER IN W.P.(C).NO.18199/09 DTD. 24/09/2009. EXT.P.21: COPY OF THE ORDER NO. G. 508/08/N.C DTD. 26/09/2009. EXT.P.22: COPY OF THE G.O.(RT).NO.2829/2009/H&FWD DTD. 01/10/2009. W.P.(C). NO.315/2010-L: EXT.P.23: COPY OF THE COMMUNICATION NO. AC.B/02/2009 DT.D 20/10/2009. EXT.P.24: COPY OF THE APPEAL DTD. 24/10/09 FILED BEFORE THE GOVERNMENT. EXT.P.25: COPY OF THE G.O.(RT).NO.3727/2009/H& FWD DTD. 22/12/2009. EXT.P.26: COPY OF THE PETITION FILED BEFORE THE GOVERNMENT DTD. 01/01/2010. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. ANTONY DOMINIC, J. ------------------------------------------------------------------ W.P.(C) NO.315/2010, 35566/2009,35587/2009, 35593/2009 and 36149/2009. ---------------------------------------------------------------- Dated this the 31st day of March, 2010 J U D G M E N T Issues raised in these writ petitions being common, these writ petitions were heard together and are disposed of by this common judgment. 2. First, I shall deal with WP(c).No.315/2010. 3. Petitioner submits that it has established educational institutions and a 350 hospital at Cherthala in Alappuza District. During the year 2002-2003, they made an application to the 3rd respondent seeking approval for a B.Sc Nursing School. According to the petitioner, after completing all procedural formalities, they were granted necessary approval. Accordingly students were admitted and the first batch passed out during the year 2006-2007. 4. Subsequently, they applied for starting M. Sc Nursing. By Ext.P11, the 4th respondent recommended to the first respondent to issue NOC for starting M.Sc Nursing Courses in the petitioner's institution. They also obtained the approval of the 3rd respondent by Ext.P10, for starting M.Sc Nursing Programme with an intake WPC.No.315 /2010& Ors. :2 : of 5 seats each in the specialties mentioned therein during the academic year 2009-2010, subject to the approval of the 4th respondent and the 2nd respondent University. 5. Accordingly, the first respondent issued Ext.P12 No Objection Certificate to the petitioner's institution for starting self financing M.Sc Nursing Courses for the year 2009-2010. However, the 3rd respondent did not take any further action in the matter and therefore the petitioner approached this court and filed WP (c).No.18199/2009. In that writ petition, Ext.P14 interim order was passed. In the said order this court held that if the petitioner had filed an application before the 3rd respondent for inspection and verification of the facilities for approval, the petitioner's institution shall be inspected by a competent Board. 6. Accordingly, inspection was conducted and Ext.P15 is the inspection report. Taking note of the aforesaid developments this court passed Ext.P20 interim order in W.P(c).No.18199/2009, directing the 3rd respondent to take a final decision on the petitioner's application for approval. In pursuance to the said order, the 3rd respondent issued Ext.P21, granting approval to the petitioner's institution to start M.Sc Nursing in the specialties of Community Health Nursing and Obstetrics & Gynaecological WPC.No.315 /2010& Ors. :3 : Nursing with 5 seats each. 7. It would appear that the petitioner represented against Ext.P21 to the first respondent and the first respondent issued Ext.P22 order, modifying Ext.P21 and permitting the petitioner to start courses in all the 5 specialties approved by the 3rd respondent in Ext.P10 order, but however, seats allowed were reduced to 4 each. Based on Ext.P21, the University also issued Ext.P23 requiring the petitioner to complete necessary formalities for granting provisional affiliation. 8. Meanwhile, petitioner filed Ext.P24 appeal against Ext.P21, invoking the power of the first respondent under Section 27 of the Nurses and Midwives Act. Pursuant to Ext.P24, parties were heard and Ext.P25 order was issued by the first respondent permitting the petitioner to start the courses in the remaining 3 specialties also, viz., Medical Surgical Nursing, Pediatric Nursing and Mental Health Nursing in the academic year 2009-2010, with an intake of 2 seats in each. 9. Thus, while initially by Ext.P10, the 3rd respondent permitted the petitioner to start M.Sc Nursing programme with 5 seats each in the 5 specialties mentioned therein, by Ext.P21, the 4th respondent permitted the petitioner to start the course in two WPC.No.315 /2010& Ors. :4 : specialties with 5 seats each. While by Ext.P22 the Government permitted the petitioner to start the courses in all 5 specialties with 4 seats each, in Ext.P25 order of the Government, the petitioner is permitted to admit students to the three specialties omitted in Ext.P21 also, limiting the intake to two seats each. Thus, while the petitioner was allowed by the 3rd respondent to start M.Sc Nursing Courses in 5 specialties with a total intake of 25 students, as a result of Exts.P21 and P25, the total intake of students stands reduced to 16. In these circumstances, the writ petition is filed. 10. The contention of the learned counsel for the petitioner is that, once the 3rd respondent, the Central Council, has granted its approval by Ext.P10, even if it is accepted that recognition of the institution is within the exclusive domain of the 4th respondent, the State Council, the 4th respondent or the first respondent being the appellate authority cannot modify the number of seats in respect of which approval was granted by the 3rd respondent. It is also his contention that going by Ext.P18 regulations framed by the 3rd respondent, only a college which is imparting training in B.Sc Nursing can be allowed to start courses in M.Sc Nursing. According to him, the staff strength and facilities WPC.No.315 /2010& Ors. :5 : required for starting M.Sc Nursing is prescribed in Ext.P18 regulations of the 3rd respondent and the available staff strength and facilities in the college are sufficient to train 25 students in M.Sc Nursing. It is therefore contended that the petitioner satisfies all the requirements laid down by the 3rd respondent in its regulations and hence the orders reducing the number of seats allowed by the 3rd respondent is irrational and illegal. 11. On the other hand, the stand taken by the 4th respondent is that, while the 3rd respondent is governed by the Indian Nursing Council Act, 1947, the 4th respondent is constituted under the Nursing and Midwives Act. According to the learned counsel for the 4th respondent, the areas covered by both these enactments are different and distinct. It is contended that while the 3rd respondent is competent to recognize qualifications, approval of institutions is a matter entirely within the domain of the 4th respondent. It is contended that even if seats are specified by the 3rd respondent in the order of approval, in the process of granting approval to the institution, if the 3rd respondent finds that the teaching faculty and other facilities in the college are insufficient to train the number of students permitted by the 3rd respondent, it is open to the 4th respondent to reduce the the WPC.No.315 /2010& Ors. :6 : number of seats. It is therefore contended that the 4th respondent was well within its power to reduce the intake of students and that the Government was also competent to do the same being the appellate authority. 12. Thus the controversy in this writ petition lies in a very narrow compass and the question that arises is whether it is permissible for the 4th respondent to reduce the number of seats specified in the order of approval issued by the 3rd respondent while granting approval to the institution in question. This necessarily calls for survey of the provisions contained in the Indian Nursing Council Act, 1947 and the Nurses and Midwives Act, 1955, which defines the powers of respondents 3 and 4. Among the provisions in the Indian Council Act what are required to be noticed are, section 10 providing for recognition of qualifications, section 11 providing for effect of recognition, section 13 providing for inspection of institutions, section 14 providing for withdrawal of recognition and section 16 providing for power to make regulations. A perusal of these provisions of the Indian Nursing Council Act, shows that recognition of the qualifications and the conditions for admissions to courses of training of Nurses, Midwives, Axillary Nurse Midwives, Heath WPC.No.315 /2010& Ors. :7 : Visitors etc. are fully within the domain of the 3rd respondent. On the other hand the provisions of the Nurses and Midwives Act, 1953 shows that institutions for training Nurses and Midwives are to be recognized by the 4th respondent and against an order of 4th respondent an appeal is also provided to the first respondent. In the judgment in National Medical Educational Charitable Trust V. Kerala Nursing and Midwifery Council (2006(2) KLT 612) this court had occasion to consider the provisions of these two enactments and it was held that the Indian Nursing Council Act, does not empower the Central Council to deal with the recognition or approval of institutions and that the Act is mainly concerned with recognition of qualifications for the purpose of enrollment in the State Register. It was also held that recognition or approval of institution is essentially the function of the State Council, the 4th respondent. 13. Therefore, it is for the 3rd respondent to recognize the qualifications, while the 4th respondent is to recognize the institutions. Once it is accepted that it is the 3rd respondent to recognize the qualifications, provisions of Nursing Council Act, 1947 also show that the conditions of admission and everything that are incidental thereto are also to be specified by the 3rd WPC.No.315 /2010& Ors. :8 : respondent. Section 16 of the Indian Nursing Council Act confers power on the 3rd respondent to frame Regulations in this behalf. Ext.P18 is the Regulations framed by the 3rd respondent exercising its powers under Section 16(1)(g), providing the guidelines and minimum requirements for setting up a College for Nursing. The 3rd respondent has also framed the Indian Nursing Council Regulations 2007, exercising its powers under Section 16 (1) of the Indian Council Act. Part III provides the procedure for establishing a School or College of Nursing Education and clause (78) of Part XIII-B, so far as it is relevant is extracted below for reference. “(6) The decision of INC as regards the suitability of the Institution and the number of seats for each programme shall be final. The SNRC and Examination Boards shall approach INC first before making any departure from the approval granted by INC.” 14. From the above, it can therefore be seen that the decision of the Central Council as regards the suitability of the institutions and the number of seats for each programme has been given a finality. The 4th respondent or the University has to approach the Central Council first before making departure from the approval granted by it. The 4th respondent does not dispute WPC.No.315 /2010& Ors. :9 : the binding nature of these regulations. Therefore in a case where even after approval is granted by the 3rd respondent, on inspection of the facilities provided and the facility available in the institution, if the 4th respondent finds that going by the norms prescribed by the 4th respondent or by the 3rd respondent itself, the College in question does not satisfy the same, or that the number of intake as approved by the 4th respondent needs modification, necessarily the 4th respondent or the University has to approach the 3rd respondent and to seek appropriate modifications. As already seen, the area of operation of both the Central Act and State Act referred to above are different and distinct. Therefore, It has to be accepted, nor was it seriously disputed by the 4th respondent, that the recognition of the qualifications and the number of seats to be permitted, is a matter falling within the exclusive jurisdiction of the 3rd respondent. If that be so, in the process of granting recognition to the institution concerned as provided under Section 26 of the Nurses and Midwives Act, the 4th respondent cannot of its own, modify the number of seats allowed by the 3rd respondent. At the same time, the 3rd respondent has taken care to provide an inbuilt mechanism in its regulations to resolve differences of WPC.No.315 /2010& Ors. :10 : opinion as well. This is the purpose that is sought to be achieved by clause 78.6 of the Regulation extracted above. This is certainly a laudable method as an organization under the State cannot and should not lock horns with another organization functioning under the Central Government and any such controversy will be destructive of the very fabric of our democratic set up. Therefore, once the 4th respondent has completed the inspection, it feels that the intake of students or the courses allowed by the 3rd respondent needs modification, it ought to have moved the 3rd respondent rather than taking upon itself the responsibility of reducing the number of trainees or courses specified by the 3rd respondent. True the counsel for the petitioner contended that under Ext.P18 Regulations, the facilities and teaching facility which the institution should possess, is sufficient to train the number of trainees permitted to be admitted for M.Sc nursing courses. However, fact remains that the 4th respondent has found that the technical and teaching facilities provided are insufficient to train 25 students permitted in Ext.P10. There is absolutely no material nor is it the case of the petitioner that the assessment made by the 4th respondent is vitiated by mala fides. When the result of assessment is as above and when regulations framed by WPC.No.315 /2010& Ors. :11 : the 3rd respondent provides for a mechanism, to resolve such differences, I think it is for the respective authorities to sort out the differences in the manner provided in the Regulations rather than passing inconsistent orders. Admittedly this course of action was not adopted and therefore, in my view Exts.P21, 22 and 23 are to be quashed and I do so. 15. It is directed that the 4th respondent shall forthwith intimate to the 3rd respondent, the outcome of its inspection and if necessary, seek appropriate modification to Ext.P10, in terms of clause 78.6 of the Indian Nursing Council Regulations, 2007. The 4th respondent shall take necessary action in this behalf, as expeditiously as possible and at any rate within 3 weeks from the date of receipt of a copy of this judgment and on receipt of the matter, the 3rd respondent shall take a decision in the matter within 4 weeks thereafter. Once the 3rd respondent takes a final decision, the same will be communicated to respondents 2 and 4, and appropriate consequential orders shall be passed without any further delay in the matter. WPC.No.315 /2010 is disposed of as above. 16. In so far as WP(c).No.35566/2009 is concerned, the Nursing Council of India granted approval to the petitioner, for WPC.No.315 /2010& Ors. :12 : commencing M. Sc Nursing Courses in Gynaecology, Pediatric Nursing and Medical Surgical Nursing with an intake of 5 seats each. By Ext.P3 order the State Council accorded sanction only for M.Sc Nursing in Gynaecology with 5 seats. Thereafter, by Ext.P3 order, the State Government gave approval for M.Sc Nursing in Medical Surgical and Pediatric Nursing with 4 seats each. This was followed by Ext.P5 order passed by the University granting affiliation for Pediatric Nursing and Gynaecology with 4 seats each. This means that from out of the seats allowed by the Central Council, the State Council reduced one seat each for M.Sc Nursing in Medical Surgical and Paediatrics and the University declined affiliation in so far as M.Sc Nursing in Medical Surgical and also reduced one seat for M.Sc Nursing in Gynaecology. 17. In so far as WP(c). No.35593/2009 is concerned, the Indian Nursing Council issued Ext.P1 order according approval for M.Sc Nursing Course in Community Health Nursing and Medical Surgical Nursing with 5 seats each. By Ex.P3 order, the State Nursing Council granted approval but however restricted the intake to 4 seats each. This was followed by Ext.P4 order passed by the University granting affiliation only to M.Sc Nursing in Medical Surgical Nursing, specifying the number of seats at 4. WPC.No.315 /2010& Ors. :13 : 18. In so far as WP(c).No.35587/2009 is concerned, the Indian Nursing Council issued Ext.P1 order according approval for M.Sc Nursing in Gynaecology, Medical Surgical Nursing and Community Health Nursing with 5 seats each. Based on Ext.P1, the State Nursing Council issued Ext.P3 order granting approval for all the specialties without modifying the number of seats. However, the University issued Ext.P5 granting affiliation only for Community Health Nursing and Gynaecology restricting the intake to 4 each. 19. In so far as WP(c).No.36149/09 is concerned, Indian Nursing Council granted approval for 5 specialties, viz. Child Heath Nursing(Pediatrics),Community Health Nursing, Gynaecology, Medical Surgical Nursing and Mental Health Nursing. Ext.P1 order further provides that the intake shall be 5 seats each. In pursuance to Ext.P1, the State Nursing Council issued Ext.P3, granting approval to 3 specialties, viz. Gynaecology, Community Health Nursing and Mental Health Nursing. The University on its part, thereafter issued Ext.P4 granting affiliation only in respect of Community Health Nursing and Gynaecology. By this order, the intake also has been reduced from 5 seats specified WPC.No.315 /2010& Ors. :14 : by the Indian Nursing Council and State Nursing Council, to 4 seats each. 20. Having regard to the directions issued in WP(c). No.315/2010, these writ petitions are disposed of with the following directions. 21. Exts.P3 and P4 in WP(c).No.35566/2009, Ext.P3 orders in WP(c).No.35593/2009 and WP(c).No.36149/2009 to the extent the number of trainees and the number of specialties approved by the Indian Nursing Council are set aside. It is directed that it will be open to the State Nursing Council to take steps in accordance with regulation 78.6 of Part-XIII-B of the Nursing Council Regulations and obtain appropriate orders from the Indian Nursing Council. This process shall be completed within the time frame fixed in the judgment in WP(c).NO.315/2010. It is directed that once orders are passed by the Indian Nursing Council, it will be open to the petitioners to produce such orders before the respondent University which shall pass fresh orders on the question of affiliation of the petitioners' institution. 22. In WP(C).NO.35587/2009, the challenge is against ExtP4, by which the University granted affiliation only for Community WPC.No.315 /2010& Ors. :15 : Health Nursing and Gynaecology, whereas the Indian Nursing Council and State Council by Exts.P1 and P3 orders, granted approval for M.Sc courses in Gynaecology, Medical Surgical Nursing and Community Health Nursing. Further the University also reduced intake from 5 seats to 4 seats. In view of the principles laid down by the Apex Court in State of Maharashtra V. Sant. Dnyanehwar Shikshnan Shastra Mahavidyalaya & Ors. (2006(9) SCC 1) and this court in Vikram Sarabhai Educational Trust & B.Ed College V. University of Calicut & Ors. ( ILR 2008(2) Kerala 623), the order passed by the University cannot be sustained. Therefore Ext.P4 in WP(c).No.3558709 to the extent affiliation is declined in so far as M.Sc Nursing in Medical Surgical Nursing and reducing the intake to 4 seats is set aside and the University is directed to pass fresh orders of affiliation consistent with Exs.P1 and P3. This shall be done as expeditiously as possible and at any rate within 6 weeks from the date of production of a copy of the judgment. Writ Petitions are disposed of as above. (ANTONY DOMINIC) JUDGE vi/ WPC.No.315 /2010& Ors. :16 :