IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:12.08.2010 CORAM: THE HONOURABLE MR.JUSTICE V.DHANAPALAN W.P.No.15285 OF 2010 and M.P.No.1 of 2010 Farouk Educational Trust rep.by its Secretary Roshan Tower Villianur Main Road Thattanchavadi, Villianur Pondicherry 605 110 .. Petitioner vs 1.Indian Nursing Council represented by its Secretary Combined Council Building Kotla Road, Temple Lane, New Delhi 110 002 2.The Secretary Health Department Government of Puducherry, Puducherry .. Respondents Writ Petition is filed under Article 226 of the Constitution of India for the issue of writ of Mandamus directing the Indian Nursing Council, the 1st respondent herein to grant recognition and suitability certificate to the petitioner for starting B.Sc(Nursing) Degree course for the academic year 2010-2011. For petitioner : Mr.Vijay Narayan Senior Counsel for Mr.P.Raja For respondents : Mr.M.T.Arunan (for R1) Mr.D.Sreenivasan Government Pleader(Puducherry) (for R2) https://hcservices.ecourts.gov.in/hcservices/ ORDER By consent, the Writ Petition itself is taken up for hearing. 2. Heard Mr.Vijay Narayan, learned senior counsel appearing for the petitioner with Mr.P.Raja, learned counsel for the petitioner and Mr.M.T.Arunan, learned counsel appearing for the first respondent and Mr.D.Sreenivasan, learned Government Pleader (Puducherry) for the second respondent. 3. This petition is filed for a direction to the Indian Nursing Council, the first respondent herein to grant recognition and suitability certificate to the petitioner for starting B.Sc.(Nursing) Degree course for the academic year 2010-11. 4.(i) According to the petitioner, they formed a trust by name "Farouk Educational Trust" (hereinafter referred to as "the Trust") with an object of establishing educational and cultural institutions, colleges, schools etc. They also intended to set up paramedical institutions in Puducherry including a Nursing College to fulfil the objects of the Trust. Thereafter, the petitioner purchased lands in G.N.Palayam in Puducherry, constructed the building for conducting classes, identified the staff for the college and created well equipped lab, library and other infrastructural facilities. The petitioner has spent huge amount towards the above to start the college in the name and style of RAAK Nursing and Paramedical College. (ii) It is submitted that the Indian Nursing Council, the first respondent has framed regulations for granting recognition to nursing colleges under Section 10 of the Indian Nursing Council Act, 1947 (hereinafter referred to as "the Act") wherein it is provided that for the establishment of Nursing College, the establishment should obtain No objection/Essentiality Certificate from the State Government, the permission from the Indian Nursing Council and the approval from the State Nursing Council and the Examination Board/University. (iii) As early as in 2005, the petitioner applied to the Government of Puducherry seeking permission/Essentiality Certificate for setting up of the Parmedical College in Puducherry for various courses including B.Sc.(Nursing). In pursuance of the application, an inspection was conducted on 22.9.2005 and the second respondent-the Government of Puducherry in its letter dated 17.2.2006 issued an “In-Principle Essentiality Certificate” for setting up a Paramedical College for conducting various courses like B.Sc. (Nursing), BPT, B.Sc.,(Bio-Tech), B.Pharm., etc. However, the https://hcservices.ecourts.gov.in/hcservices/ petitioner could not start the paramedical institution at that point of time. (iv) In the light of “In-Principle Certificate” issued to the petitioner, they have decided to set up and start a Nursing college and conduct B.Sc.(Nursing) course. Hence, they made their application on 22.8.2008 requesting the second respondent to issue No Objection Certificate/Essentiality Certificate. The second respondent after causing necessary inspection and being satisfied with the desirability of establishing the college in the locality, the management's feasibility and the availability of infrastructure, issued the No Objection Certificate/Essentiality Certificate to start the College with an annual intake of 60 students vide letter dated 02.02.2010. (v) Immediately, the petitioner approached the Tamil Nadu Nurse and Midwives Council and Pondicherry University, the affiliating University for permission, but was told that the same would be granted immediately once the Indian Nursing Council gives recognition. Based on the request, the Tamil Nadu Nurses and Midwives Council has conducted the inspection and granted recognition for the academic year 2010-2011 for the intake of 60 students. By that time the inspection by the Pondicherry University was also over. It is also claimed by the petitioner that they applied to the first respondent by application dated 27.01.2009 along with the requisite documents including “In-Principle Essentiality Certificate” granted by the second respondent as at that point of time, the final No Objection Certificate/Essentiality Certificate was not issued by the second respondent. A demand draft for Rs.50,000/- was also enclosed towards the inspection fee by the letter dated 16.7.2009. The second respondent required the petitioner to comply with by furnishing documents including the Essentiality Certificate and the same was issued to the petitioner on 02.02.2010 after much delay. Hence, the petitioner was not able to submit the same immediately. (vi) Soon after receiving the No objection Certificate/Essentiality Certificate, the petitioner sent the same along with other documents as required by the first respondent in their letter dated 03.02.2010 and requested them to cause inspection and grant approval and also suitability certificate. Thereafter by the letter dated 02.6.2010 and telegram dated 03.06.2010 the first respondent intimated the petitioner that they would visit and cause inspection of the petitioner institution on 11/12.06.2010 for B.Sc. (Nursing Course). In pursuance of the said communication, the officials of the first respondent caused inspection on the said dates. They were satisfied with the facilities and the infrastructure available and stated that approval would be granted to the petitioner in a short span of time. https://hcservices.ecourts.gov.in/hcservices/ (vii) While that being so, to the utter dismay of the petitioner, the first respondent has not issued the approval till date. When the petitioner verified with the status of their application for approval of B.Sc.(Nursing) course in the web site of the first respondent, they came to know that the 'report withheld'. The petitioner has not received any oral or written communication till date. It is their case that the Indian Nursing Council has prescribed the cut-off date for submission of the application forms for the academic year 2010-2011 as 31.1.2010 along with all documents including the No Objection Certificate/Essentiality Certificate from the State Government. The certificate was given to the petitioner on 02.2.2010 only because 30.1.2010 and 31.1.2010 fell on Saturday and Sunday. However, the petitioner has submitted the No objection Certificate/Essentially Certificate dated 02.2.2010 immediately on receipt of the same, to the first respondent. Therefore, there could not be any laches on the part of the petitioner and the application cannot be withheld on such ground. The approval of the first respondent is necessary for the purpose of recognition of the degree. Without recognition, the degree would carry no merit outside the State of Puducherry. Having satisfied with all the infrastructure facilities, unless the first respondent grants recognition, it will be futile to start the course. Therefore, the first respondent ought to have considered the petitioner's application and granted approval and suitability certificate for the academic year 2010-1011 taking note of the said request for intake of 60 students by the petitioner. The first respondent is under an obligation to consider the petitioner's request for grant of recognition and suitability certificate. Hence, this petition is filed. 5 (i). The first respondent has filed its counter and it is stated that the writ petition is totally misconceived inasmuch as admittedly the petitioner did not submit complete proposal to the first respondent for starting a college of Nursing within the period and the schedule prescribed and circulated by the respondent. As early as on 27.11.2009 the first respondent had published in their official web site and also in prominent newspapers all over the country the calendar of events and schedules as regards the proposals for opening of Nursing Schools and Colleges by which all concerned in the country interested in the opening of schools and colleges of Nursing are given prior information as they are able to complete the requisite formalities and submit the completed proposals in time. The calendar and the schedule prescribed by them has to be observed and maintained in its right spirit since it invariably takes about four months for completing the process of inspection and placing the inspection report before the Executive Committee of the Indian Nursing Council. In most of the cases, inspections of the institutions/colleges revealed deficiencies in various respects as regards clinical and infrastructural facilities and consequently the https://hcservices.ecourts.gov.in/hcservices/ concerned institutions are given an opportunity to remove the deficiencies so that re-inspection of the institution can be carried out. All these necessary steps invariably consume a lot of time and hence a schedule of calendar has been prescribed and maintained so that there is no confusion in the minds of the persons promoting new colleges/schools. It is their stand that independent inspectors have to be appointed under Section 13 of the Act and they have to be supplied with requisite information about the institution/college sought to be inspected. The time schedule is insisted upon all over the country in order to maintain uniformity in considering the proposals without anybody alleging arbitrariness of favoritism in such consideration. (ii) It is further stated that the petitioner submitted their proposal to start the B.Sc.(Nursing) course. Along with their proposal they submitted the mandatory essentiality certificate dated 17.02.2006 issued by the State Government. It is on this proposal and the Essentiality Certificate dated 17.2.2006, the respondent conducted inspection on the petitioner's college on 11/12.6.2010. During that time when the inspection report was under process and consideration it has come to the notice of the respondent through another Writ Petition in W.P.No.12002/2010 (Smt.Rani Adaikalaraj Educational and Charitable Trust V. Indian Nursing Council and another) that the State Government has issued another essentiality certificate to the petitioner trust on 02.02.2010 well after the cut of date. (iii) After coming to note all this, the respondent after inquiries found that the earlier inspection conducted by the respondent was on the basis of essentiality certificate dated 17.2.2006 which stated that the said certificate has been issued "In- Principle" permitting the petitioner institution to open a paramedical college. The records also revealed that the State Government has also issued another essentiality certificate to the petitioner institution vide their certificate dated 02.02.2010. Keeping in view the above fact that the essentiality certificate has been issued after the cut-off date and that the entire inspection has been conducted inadvertently, the respondent has no other option to keep in abeyance the case of the petitioner Trust. The petitioner institution would now be considered for approval/suitability for the academic year 2011-2012 in terms of the calendar of events announced. The petitioner was aware of calendar of events prescribed but still the petitioner chose to submit an incomplete proposal to the respondent for starting college of Nursing. (iv) The petitioner has submitted the incomplete proposal on 22.2.2010 without annexing therewith the mandatory No Objection Certificate/Essentiality Certificate from the State Government. As a matter of fact, necessary No Objection Certificate/Essentiality Certificate was issued by the State Government on 02.02.2010 for https://hcservices.ecourts.gov.in/hcservices/ starting a College of Nursing and the same was submitted by the petitioner only thereafter well after the cut-off date. (v) In these circumstances, the respondent in order to maintain uniformity all over the country did not consider the proposal of the petitioner for the academic year 2010-2011. It is submitted that any consideration of proposal after the due date and making an exception to one institution would lead to floodgate of applications from other similarly placed institutions on the ground of discrimination and favoritism. The petitioner ought to have exercised due diligence and submitted its proposal in time in order to avoid future complications. (vi) The respondent as a matter of policy decision in India decided not to entertain such incomplete proposals since any such consideration may invite the wrath of arbitrariness and discrimination. (vii) The reliance placed by the petitioner in respect of W.P.No.25933 of 2007 for their support is already under appeal. Therefore, there cannot be any advantage to them. Unless the nursing institution located anywhere in India is approved by the Indian Nursing Council any person who obtain their degrees/diplomas etc will not be entitled to register themselves and practice in any part of India. The role of Indian Nursing Council is to regulate the nursing profession in the whole of India and to set uniform standard in the matter of Nursing Training. (viii) Therefore, the Indian Nursing Council has laid down norms for opening of Nursing Training Institutions as regards all faculties which are required to be followed by every nursing institution in order to be approved by the Indian Nursing Council. Such approval is granted by the Indian Nursing Council only after the inspection of the concerned Institution. Therefore, the respondent conducts inspection only after the institution has submitted within time the completed proposals including the No Objection Certificate/Essentiality Certificate. 6. Mr.Vijay Narayan, learned Senior Counsel appearing for the petitioner in his submission has strenuously contended that the petitioner has submitted its application as early as on 22.2.2010 and there is delay on the part of the second respondent to grant No objection Certificate/Essentiality Certificate and the delay cannot be put against the petitioner. Earlier there was an "In-Principle Essentiality Certificate" granted on 17.2.2006. and thereafter, they started providing facilities and the inspection conducted has to be taken into account. The learned Senior Counsel further submitted that the mechanism advised by the respondent in granting recognition to the Nursing Colleges is undoubtedly a process and any delay on the part of one organ cannot be put against the petitioner. In this case, since the last two days fell on Saturday and Sunday and one day https://hcservices.ecourts.gov.in/hcservices/ thereafter, the essentiality certificate was issued. Therefore, any delay on the part of the submission of the essentiality certificate cannot be put against the petitioner. 7. Per contra, learned counsel for the first respondent would contend that it is a policy of the Indian Nursing Council to follow uniformity in considering the proposals and the schedule prescribing the calendar of events has been notified both in the web site as well in the newspaper. Knowing well that the last date was 31.1.2010, the petitioner has submitted the incomplete proposal on 22.2.2010. Therefore, any proposal after the due date and making an exception to one institution would lead to floodgate of applications from other similarly placed institutions on the ground of discrimination and favoritism. 8. The learned Government Advocate (Puducherry) in his submission has made it clear that on administrative reason they took time to consider the request for essentiality certificate by the State Government and it is true that there is a delay in granting the certificate and it has been given to the petitioner on 02.2.2010. 9. I have heard the learned counsel on either side and perused the material documents and the relevant provisions of law. 10. The petitioner institution is an educational trust with the intention of starting the Nursing College and had applied to the respondents therefor as early as in the year 2005. After conducting inspection on 22.9.2005, the second respondent granted "In-Principle Essentiality Certificate" on 17.2.2006 for several courses. The petitioner could not start the paramedical institution at that point of time. Thereafter, the petitioner approached the Tamil Nadu Nurses and Midwives Council and Pondicherry University, the affiliating University, for permission, but they have been told that the same would be granted immediately on recognition from the Indian Nursing Council. 11. A perusal of the records would also reveal that the petitioner applied to the first respondent on 27.01.2009 along with the requisite documents, after paying the necessary fees. However, as the Essentiality Certificate was issued to the petitioner only on 02.2.2010, the same was sent to the first respondent vide their letter dated 03.2.2010. Thereafter, they have verified with the website of the first respondent and found that their report has been withheld and their request for recognition and suitability certificate is not considered. The reason for not considering the application of the petitioner for recognition is that they submitted the essentiality certificate after the cut-off date, namely, 31.1.2010. https://hcservices.ecourts.gov.in/hcservices/ 12. The claim of the petitioner is that they applied to the second respondent as early as on 22.8.2008 for "In-Principle Essentiality Certificate", but the said essentiality certificate was given only on 02.2.2010 and therefore there was enormous delay in issuing the essentiality certificate, which delay cannot be attributed to them. It is also admitted by the learned Government Pleader (Puducherry) that there was administrative delay in considering the application of the petitioner. 13. It is true that calling of application has been made through advertisement in the newspaper as well as in the website and the petitioner was also aware of the schedule of calendar for making the application and also various stages and processes which require the inspection by appropriate authorities and if there is any deficiency at that point of time, it has to be complied with. Thereafter, the respondent could process the application for approval. This schedule has to be strictly followed by both the parties, who are starting the colleges and also the authorities who are considering the various requests for approval, grant of certificate etc. Such being the position, every aspect involved in submitting the application and more so the delay in grant are to be taken note of while processing the application. 14. In the instant case, the petitioner had made an application as early as on 22.8.2008, but the essentiality certificate was issued to the petitioner only on 02.2.2010, two days after the cut-off date, though the petitioner had "In-Principle Essentiality Certificate" dated 17.2.2006. In the given situation, the proposal of the petitioner proposal has to be re-looked into, taking note of the various circumstances expressed by them, though the Indian Nursing Council though has an obligation to adhere to the calendar of schedule prescribed as per the provisions of the Act and the provision is mandatory to give consideration within the time frame and also considering the circumstance that the last two days fell on Saturday and Sunday and on the next working day, the certificate was received by the petitioner. 15. In the light of the above discussions and considering the peculiar circumstances of the case, the first respondent is directed to re-look into the request of the petitioner for grant of recognition and suitability certificate to B.Sc., (Nursing) degree course for the academic year 2010-2011 based on their representation dated 15.6.2010 and pass appropriate orders within a period of two weeks from today. https://hcservices.ecourts.gov.in/hcservices/ 16. Writ Petition is disposed of accordingly. No costs. Consequently, connected M.P.No.1 of 2010 is closed. Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1.The Secretary Indian Nursing Council Combined Council Building Kotla Road, Temple Lane, New Delhi 110 002 2.The Secretary Health Department Government of Puducherry,Puducherry + 1 cc to Mr. P. Raja, Advocate SR No.59344 W.P.NO.15285/2010 & M.P.No.1/2010 SR(CO) SR/16.8.2010 https://hcservices.ecourts.gov.in/hcservices/