IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 28TH JULY 2008 / 6TH SRAVANA 1930 WP(C).No. 17298 of 2008(H) -------------------------- PETITIONER: ------------ K.VELAYUDHAN MEMORIAL TRUST, POST BOX-13, CHERTHALA, REPRESENTED BY ITS DIRECTOR, DR.V.V.PYARELAL. BY ADV. SRI.GEORGE POONTHOTTAM RESPONDENTS: ------------- 1. INDIAN NURSING COUNCIL, KOTLA ROAD, TEMPLE LANE, NEW DELHI-110 002, REPRESENTED BY THE SECRETARY. 2. THE UNIVERSITY OF KERALA, REPRESENTED BY THE REGISTRAR, THIRUVANANTHAPURAM. BY ADV. SRI.M.RAJAGOPALAN NAIR FOR R2 ADV.NOUSHAD THOTTATHIL, FOR R1. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P(C).No. 17298/08. APPENDIX PETITIONER'S EXHIBITS: P1. COPY OF THE CONSENT LETTER DTD.2.12.02. P2. COPY OF THE ORDER DTD.3.8.04. P3. COPY OF THE APPLICATION DTD.24.12.07. P4. COPY OF THE LETTER DTD.15.12.07. P5. COPY OF THE LETTER DTD.8.1.08. P6. COPY OF THE APPLICATION TO INDIAN MEDICAL COUNCIL. P7. COPY OF THE COVERING LETTER DTD.22.1.08. P8. COPY OF THE JUDGMENT IN W.P.C.NO.3982/08 DTD.15.2.08. P9. COPY OF THE COMMUNICATION DTD.31.5.08. P10. COPY OF THE STATEMENT FILED BY THE UNIVERSITY IN W.P.C.NO.3982/08. P11. COPY OF THE SYLLABUS AND REGULATIONS BY R1. RESPONDENTS' EXHIBITS: R2(A) COPY OF THE INSPECTION COMMISSION REPORT. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P.(C).No.17298 of 2008 ================== Dated this the 28th day of July, 2008 J U D G M E N T The petitioner is a Trust which aspires to start a M.Sc. Nursing Course in their college, which is already a B.Sc. Nursing course, as per approval by the Nursing Council and affiliation by the Kerala University, two batches of which have already passed out from the institution. According to the petitioner, as per the Nursing Council Regulations, a nursing college from which already one batch has obtained B.Sc. Nursing degree is entitled to apply for approval of M.Sc. Nursing course. For the purpose of submission of application for approval of the M.Sc. Nursing course before the Nursing Council, the Rules of the Nursing Council require production of a consent letter of the University. The petitioner applied for one. Since the University did not pass orders on the same, the petitioner filed W.P(C).No.3928/2008 before this Court. In that writ petition the University filed Ext.P10 statement in which they took the stand that the petitioner did not apply for NOC, but only for affiliation and therefore, the same w.p.c.17298/08 2 could not be considered. After considering that statement, this Court in Ext.P8 judgment held thus: “The prayer sought for in this writ petition is to direct the respondents to issue NOC which is a requirement for processing the petitioner's application by the Nursing Council of India so as to enable the petitioner to commence the M.Sc.Nursing course. The petitioner contended that the University issued Ext.P3 application form and that the said application form was submitted by the petitioner for the issue of a NOC from the University. Complaining of delay on the part of the University in taking a final decision in the matter, the petitioner filed this writ petition. 2. Although the case of the University as urged by it with statement filed, is that the application made by the petitioner is one for affiliation and not for NOC, that does not appear to be the correct factual position. It is on record that in response to Ext.P4 request of the petitioner the University itself had issued Ext.P3 application form on which the petitioner made their application. That apart, neither in the statement nor in Ext.R1(a)is it mentioned that there is any separate application form prescribed for this purpose. In view of this, it is not open to the University to contend that the application made by the petitioner is not one for NOC. Therefore, the University has to consider Ext.P3 application made by the petitioner as one validly made for issuing NOC enabling the petitioner to commence the course in M.Sc.Nursing. 3. Counsel for the University contends that if any additional fee is to be paid for issuance of NOC, that will have to be complied with by the petitioner. Needless to clarify that in case there is such a requirement, the petitioner has to comply with the same. 4. In view of the above, I direct that the University shall consider Ext.P3 application as one validly made by the petitioner for issuing of NOC. The University shall communicate the petitioner, if any additional fee is to be paid , within one week from the date of production of a copy of this judgment, and on remittance of the same, the University shall take a final decision on the request of the petitioner for issuing NOC as made in Ext.P3, within four weeks thereafter.” Pursuant to the above judgment, the University passed Ext.P9 w.p.c.17298/08 3 order, the operative portion of which reads thus: “As directed by the Hon'ble court, the Syndicate, University of Kerala, vide reference cited (4) reconsidered Ext.P3 (application for affiliation) and resolved not to recommend the M.Sc. Degree Course in Nursing in the K.V.M. College of Nursing, Cherthala.” According to the petitioner, again, notwithstanding the judgment of this Court, as is evident from Ext.P9, the University considered the petitioner's application as one for affiliation and refused to recommend M.Sc. Nursing degree in the petitioner's college on the ground that only after stabilizing the B.Sc. Course in Nursing already sanctioned, M.Sc. course in Nursing can be started. The petitioner challenges Ext.P9 order and seeks the following reliefs in this writ petition: “i) Issue a writ of certiorari calling for the records leading to Ext.P9 and the order 2nd referred therein and to quash the same. ii) Issue a writ of mandamus directing the respondent university to issue the consent letter as requested through Ext.P4 ignoring Ext.P9 and the decision referred to tehrein as taken on 29.1.2008. iii) Issue a writ declaring that in view of the negative stand taken by the university for issuance of consent letter to start a post graduate course for an institution which is already affiliated to the university, the 1st respondent can consider the application for M.Sc. nursing programme without the consent letter of the affiliating university as provided in the application form or in the alternative direct the 1st respondent to consider the application for M.Sc. nursing programme as applied by the petitioner without the consent letter of the affiliating university.” 2. The University has filed a counter affidavit, in which w.p.c.17298/08 4 their contention is that on inspection of the petitioner's college, it was found that the petitioner's college does not have the infrastructural facilities and faculty required for conducting the M.Sc. course and therefore, no consent of affiliation can be granted now. The standing counsel for the University also contends that local needs also do not justify starting a new M.Sc. (Nursing) course in the locality. 3. In answer to the above, the learned counsel for the petitioner would contend that the adequacy of infrastructure facilities and faculty would arise only at the time of granting affiliation after the Nursing Council considers the application of the petitioner for approval and grants approval, not before. He would also submit that in view of the decision of the Supreme Court in STATE OF MAHARASHTRA v. SANT DNYANESHWAR SHIKSHAN SHASTRA MAHAVIDYALAYA AND OTHERS reported in (2006) 9 SCC 1, the University is not empowered to look into the local needs for the purpose of refusing permission of affiliation of a new course. According to him, the same can be looked into only by the Nursing Council. The learned Standing w.p.c.17298/08 5 Counsel for the University would rely on the decision in Govt.of A.P. v. J.B. Educaitonal Society [2005(2) KLT 155] in support of his contention that the University can look into the local needs for this purpose. 4. I have considered the rival contentions in detail. 5. I am not impressed by the contentions of the learned Standing Counsel for the University. First of all, Ext.P9 order is thoroughly unsatisfactory. By Ext.P8 judgment, this Court had specifically directed the University to consider the application of the petitioner as one validly made for issuing NOC enabling the petitioner to apply for approval of the Nursing Council for the course in M.Sc. Nursing. But again the University apparently considered the same as an application for affiliation itself, which in fact is contrary to Ext.P8 judgment. Ext.P9 is liable to be quashed on that ground alone. But that would not serve the purpose of the petitioner and would in fact further delay their cause. Therefore, I am inclined to consider the contentions of the parties on merits as to whether the University can validly refuse to issue consent for affiliation to the petitioner for M.Sc. Nursing Course. w.p.c.17298/08 6 6. As far as the two decisions relied on by the contesting parties are concerned, the decision of J.B.Educational Society's case (supra) relied on by the University is a decision by a Bench consisting of two Judges, that too, in 2005, whereas the decision of the Supreme Court in SANT DNYANESHWAR SHIKSHAN's case (supra) is of the year 2006, by a Bench consisting of 3 Judges. Therefore, the latter decision would be applicable for resolving the issue. In paragraph 74 of the judgment in that decision, the Supreme Court has categorically held thus: “74. It is thus clear that the Central Government has considered the subject of secondary education and higher education at the national level. The act 1993 also requires Parliament to consider teacher-education system “throughout the country”. NCTE, therefore, in our opinion, is expected to deal with applications for establishing new BEd colleges or allowing increase in intake capacity, keeping in view the 1993 Act and planned and coordinated development of teacher-education system in the counrty. It is neither open to the State Government nor to a university to consider the local conditions or apply “State policy” to refuse such permission. In fact, as held by this Court in cases referred to hereinabove, the State Government has no power to reject the prayer of an institution or to overrule the decision of NCTE. The action of the State Government, therefore, was contrary to law and has rightly been set aside by the High Court.” Going by the above decision, the University cannot validly take into consideration the local needs for the purpose of deciding grant of affiliation, much less consent of affiliation. That being so, w.p.c.17298/08 7 the question of considering the same for consent of affiliation does not arise at all. 7. Of course, the University would take a contention that the petitioner's college does not even have appropriate faculty for conducting the B.Sc. Nursing Course and therefore, the University is certainly entitled to refuse consent of affiliation on that ground. But such a ground is not mentioned in Ext.P9 at all and therefore, this is clearly an after-thought included in the counter affidavit filed in this writ petition. It is settled law that a party cannot better in the impugned order by reasons which are not stated in the order itself. That being so, I am not inclined to countenance that contention. In any event, the University has no case that they have taken steps to cancel affiliation for B.Sc. Nursing on the ground that there is no sufficient faculty. Even otherwise, whether there is sufficient faculty or not, is not a matter which has to be taken into consideration at the time of considering consent of affiliation. Those considerations, if at all, would be relevant only at the time of grant of affiliation. That being so, I do not find any merit in any of the objections raised by the University to refuse consent of affiliation. In the above w.p.c.17298/08 8 circumstances, the writ petition is allowed and Ext.P9 is quashed. In view of the fact that in spite of the earlier direction of this Court the University has not chosen to consider the matter in the right perspective as directed by this Court, I am not inclined to leave it again to the discretion of the University. Accordingly, there would be a direction to the 2nd respondent to issue a consent of affiliation to the petitioner for applying for approval of M.Sc. Nursing Course by the 1st respondent. Consent of affiliation shall be issued within two weeks from the date of receipt of a certified copy of this judgment. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge