IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 31ST OCTOBER 2011 / 9TH KARTHIKA 1933 WP(C).No. 26813 of 2011(B) -------------------------- PETITIONER: --------------- THE DIRECTOR, LITTLE FLOWER COLLEGE OF NURSING, ANGAMALY. BY ADV. SRI.KURIAN GEORGE KANNANTHANAM, SENIOR ADVOCATE SRI.MATHEW K. SIMON RESPONDENTS: --------------- 1. THE KERALA NURSES & MIDWIVES COUNCIL, REPRESENTED BY ITS REGISTRAR, RED CROSS ROAD, TRIVANDRUM-695035. 2. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001. ADV. SRI.N.RAGHURAJ, SC, TCMC & KNMC FOR R-1 GOVERNMENT PLEADER SRI.MOHAMMED SHAH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31/10/2011, ALONG WITH WPC NO. 26814 OF 2011 WPC NO. 26978 OF 2011 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX TO W.P.C.NO.26813 OF 2011 PETITIONER'S EXHIBITS: EXT.P1: TRUE COPY OF THE LETTER DATED 24/7/2010 ISSUED BY THE INDIAN NURSING COUNCIL. EXT.P2: TRUE COPY OF LETTER DATED 22/11/2010 ISSUED BY THE PETITIONER. EXT.P3: TRUE COPY OF THE ORDER DATED 07/03/2011 FROM THE INDIAN NURSING COUNCIL. EXT.P4: TRUE COPY OF THE FORMAT FOR APPLICATION FOR M.Sc.(N) DATED 01/10/2011 ISSUED FROM THE PETITIONER. EXT.P5: TRUE COPY OF THE COVERING LETTER DATED 01/10/2011 ISSUED BY THE PETITIONER. RESPONDENT'S EXHIBITS: NIL // True Copy// PA to Judge ANTONY DOMINIC, J * * * * * * * * * * * * * W.P.C.Nos.26813, 26814 and 26978 of 2011 ---------------------------------------- Dated this the 31st day of October 2011 J U D G M E N T The issues raised in these writ petitions pertain to grant of approval by the 1st respondent, the Kerala Nurses and Midwives Council, established under the Nurses and Midwives Act 1953 to nursing colleges of the petitioners for starting M.Sc (Nursing). 2. W.P.C.No.26978 of 2011 is filed by the Director of Lourdh Medical College of Nursing, an institution established by the Catholic Arch Diocese of Verapoly, a minority institution. The institution in question has already established a Nursing College, where, they are conducting the course of B.Sc Nursing with the approval of the Indian Nursing Council, the first respondent and with the affiliation of the University. 3. Ext.P9 is a circular issued by the Indian Nursing Council, which inter alia states that if the institution is recognised for B.Sc Nursing programme and if one batch has passed out found suitable, then the institution will be exempted from N.O.C/Essentiality certificate for M.Sc Nursing programme W.P.C.Nos.26813/2011 & connected cases 2 from the State Government. Since the petitioner's institution was eligible for the benefit of exemption as stated above, without obtaining N.O.C from the State Government, they submitted Ext.P10 application to the Indian Nursing Council for obtaining their approval. This application contains a note, which also provides that institutions such as the petitioner will be exempted from the requirement of N.O.C/Essentiality certificate. 4. On the basis of Ext.P10 application made by the petitioner seeking approval for M.Sc Nursing course, the Indian Nursing Council issued Ext.P1 order dated 31/3/2010 permitting the petitioner to conduct M.Sc Nursing programme, in the disciplines mentioned therein subject to the approval of the State Nursing Council and the University. On the strength of Ext.P1 and in view of the condition requiring it to obtain the approval of the State Nursing Council, in order to make an application for approval, the petitioner applied to the 1st respondent to issue necessary application form. The petitioner states that application form was not issued by the 1st respondent stating that the petitioner should produce N.O.C from the State Government. W.P.C.Nos.26813/2011 & connected cases 3 5. Thereupon, the petitioner appears to have downloaded the format of the application form for the year 2010- 2011 and submitted Ext.P7 along with processing fee of Rs.1.5 lakhs prescribed by the 1st respondent. However, the application was not processed further allegedly for non-production of N.O.C from the State Government and it is, with this complaint, the writ petition is filed praying to direct the 1st respondent to process and proceed with Ext.P7, treating the said application as a valid one. There is a further prayer to declare that N.O.C of the State Government is not required for the 1st respondent to grant its approval. 6. Though the 1st respondent has not filed any affidavit in this writ petition, the learned Standing Counsel submitted that in the absence of N.O.C from the State Government, application form was not issued to the petitioner and that Ext.P7 application submitted by the petitioner was defective for that reason. The counsel also relied on Kerala Nurses and Midwives Council Regulation 2007 for setting up of Colleges of Nursing and contended that clause 3 of the said Regulation require production of N.O.C from the State Government. W.P.C.Nos.26813/2011 & connected cases 4 7. On behalf of the 2nd respondent, a statement has been filed, explaining the procedure for issuing the N.O.C. It is also stated that such N.O.C will be issued with the condition that the College concerned should obtain approval from Indian Nursing Council, the 1st respondent, the University and then obtain Letter of Permission from the Government by executing agreement surrendering 50% of the seats and agreeing to levy fee as decided by the Government from time to time. It is also stated that since the petitioner has not complied with these requirements, the 1st respondent is not in a position to consider the application of the petitioner for approval. 8. Insofar as W.P.C.No.26813 and 26814 of 2011 are concerned, issue raised is identical. These writ petitions also have been filed by minority institutions which have already established Nursing Colleges where B.Sc Nursing courses are being conducted with the approval and affiliation of all concerned. These colleges also claim the benefit of exemption provided by the Indian Nursing Council from obtaining N.O.C/Essentiality certificate from the State Government for W.P.C.Nos.26813/2011 & connected cases 5 starting M.Sc Nursing courses. Here also, Colleges have obtained approval from the Indian Nursing Council and on refusal of the 1st respondent to issue application forms for want of N.O.C, they submitted applications along with the processing fee, seeking approval of the 1st respondent and these applications have not been processed by the 1st respondent on the ground that the colleges have not produced N.O.C from the State Government. 9. In these cases, the stand taken by the 2nd respondent in the statement filed on their behalf is that for the year 2009- 2010, N.O.C was issued to these Colleges, and these Colleges ought to have entered into agreement, surrendering 50% of the seats and agreeing to levy fee as prescribed by the Government. It is also stated that subsequently these Colleges had applied for revalidation of the N.O.C, which was rejected by the Government for the reason that the petitioners had not entered into agreement with the Government. Copy of one such order is Ext.P5 in W.P.C.No.26814/2011. 10. Contention raised by the petitioners in these writ petitions is that the refusal of the 1st respondent to process the W.P.C.Nos.26813/2011 & connected cases 6 applications made by them for want of N.O.C issued by the State Government is illegal. It is stated that there is no provision in the Nurses and Midwives Act 1953 or the Rules framed thereunder, mandating that for grant of approval by the 1st Respondent Council, N.O.C from the State Government is a requirement. It is also contended that there is no other separate law enacted by the State Government compelling an institution to enter into an agreement as now demanded by the State Government or to obtain its N.O.C for seeking approval of the 1st respondent. 11. As at present, the petitioners have made applications to the Kerala Nurses and Midwives Council for approval of their institutions for starting M.Sc Nursing Programme. These applications are not supported by any N.O.C from the State Government. For that reason, applications are refused to be processed by the Council. Question is whether the Council or the State Government could insist that the applicant institution should obtain and produce N.O.C of the State Government for the approval of the Council. W.P.C.Nos.26813/2011 & connected cases 7 12. In my view, this question has to be answered with reference to the provisions of the Nurses and Midwives Act 1953, the only Act which regulates the functions of the 1st respondent. Section 26(1) of the Act provides the manner in which institutions for training nurses and midwives are to be approved by the Council. This Section reads thus: 26. Institution for training nurses and midwives.- (1) The institutions which are approved and recognised by the Council after inspection by its representative shall be competent to train [nurses and midwives, auxiliary nurse, midwives, and health visitors] and send them for examination for the qualifying certificates recognised by the Council”. 13. Section 36 confer power on the Council to frame regulations, and among others, it provides that the Council may with the previous sanction of the Government make regulations not inconsistent with the Act or the Rules made thereunder, for the approval of any institution for the purpose of training and granting of diplomas to candidates passing the examination. Sub Section (2) provides that all regulations made under this Section W.P.C.Nos.26813/2011 & connected cases 8 and duly confirmed by the Government, shall be published in the gazette. In exercise of this power, the 1st Respondent Council have framed the Kerala Nurses and Midwives Council Regulations for setting up of Colleges of Nursing 2007. This Regulation contains the guidelines and the minimum pre- requisites for the approval of institutions as Colleges of Nursing, and clause 3, prescribes for production of N.O.C of the State Government also. However, it is admitted that the said regulations have not been published in the Gazette so far, as required under Section 36(2) of the Act. Therefore, as at present, this Regulation is unenforceable and for that reason, cannot be pressed into service. 14. Rule 83 of the Nurses and Midwives Rules provide for recognition of institutions for training Nurses, Midwives etc. This Rule provides that for the purpose of recognition of a training institution under this Rule, the institution should satisfy the conditions specified in the regulations made by the Council under Section 36. This Rule also cannot improve the case of the 1st respondent since the Regulation itself has not been notified in the Gazette and hence is unenforcible. W.P.C.Nos.26813/2011 & connected cases 9 15. For the reasons, the legality of the demand made by the 1st respondent for production of N.O.C of the State Government, will have to be tested in the light of the Act and ignoring the provisions of the Regulations relied on by the learned Standing Counsel for the 1st respondent. 16. As already seen, none of the provisions in the Nurses and Midwives Act 1953 provide that N.O.C from the State Government is a requirement to consider an application, made by an institution for approval in terms of Section 26. If that be so, the 1st respondent, being a creature of the Act, could not have insisted that the applicants like the petitioners should have produced N.O.C to process their applications. No one has a case that there is any other law obliging the Colleges to enter into agreement with the Government to seek the approval of the 1st respondent or that any other law requires the Colleges to produce N.O.C from the State Government. In such circumstances, the 1st respondent is bound to consider and process the applications made by the petitioners for approval of their respective institutions for M.Sc Nursing courses in terms of Section 26 of the Act, without insisting on the production of W.P.C.Nos.26813/2011 & connected cases 10 N.O.C from the State Government. 17. Although, the applications already made by the petitioners are liable to be processed as held above, learned counsel for the 1st respondent submits that the application is not in the proper format and that these applications do not contain the serial numbers or other particulars. However, learned senior counsel for the petitioner submits that the application made by the petitioner in W.P.C.No.26814/2011 is one issued by the 1st respondent itself and is therefore not defective, which fact is accepted by the counsel for the 1st respondent. Therefore, as far as the petitioner in W.P.C.No.26814/2011 is concerned, the 1st respondent will process Ext.P4 application already submitted by it. 18. Insofar as the petitioners in W.P.C.Nos.26813 and 26978 of 2011 are concerned, it is directed that on the production of a copy of this judgment, the 1st respondent will issue application forms enabling them to submit their applications and on its receipt, the said applications will be processed for grant of approval in terms of Section 26 of the Nurses and Midwives Act. Needless to say, payments already W.P.C.Nos.26813/2011 & connected cases 11 made, if not refunded, will be given due credit. 19. At this stage, learned counsel for the 1st respondent expressed an apprehension that the observations in this judgment might stand in the way of the 1st respondent in framing regulations in terms of Section 36 of the Act, providing for the production of N.O.C by applicant institutions. Taking note of this submission, it is clarified that none of the observations in this judgment will be to the prejudice of the 1st respondent in framing any regulations in accordance with law, including for production of N.O.C for the State Government. Writ petitions are disposed of as above. (sd/-) (ANTONY DOMINIC, JUDGE) jsr // True Copy// PA to Judge W.P.C.Nos.26813/2011 & connected cases 12 W.P.C.Nos.26813/2011 & connected cases 13 THOMAS.P.JOSEPH,J. Crl.M.C.No. of 200 ORDER 19/01/2011 W.P.C.Nos.26813/2011 & connected cases 14 (2) The Council may withdraw recognition from any such institution after its inspection by a representation of the Council. The order of such withdrawal shall be in writing and shall be served in the manner prescribed by rules.