IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 1ST OCTOBER 2010 / 9TH ASWINA 1932 WP(C).No. 23505 of 2010(K) ------------------------------------- PETITIONER(S): ----------------------- THE PRINCIPAL, UPASANA COLLEGE OF NURSING, RAVI'S INSTITUTE OF MEDICAL SCIENCE PUTHUCHIRA, INDUSTRIAL ESTATE-PO, KOLLAM. BY ADV. SRI.GEORGE POONTHOTTAM RESPONDENT(S): ------------------------- KERALA UNIVERSITY FOR HEALTH & ALLIED SCIENCES, MULAMKUNNATHUKAVU, MEDICAL COLLEGE-PO, TRICHUR DISTRICT, REPRESENTED BY THE REGISTRAR. R1 BY ADV. SRI.T.R.RAVI,SC,KERALA UTY H &A SCIENCE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/09/2010, ALONG WITH WPC. NO.27196 OF 2010 & 27535 OF 2010 THE COURT ON 01/10/2010 DELIVERED THE FOLLOWING: W.P.(C) NO.23505/2010 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE APPROVAL N0.02/JUN/2010-INC DTD. 19.6.2010. P2:- COPY OF THE ORDER NO.G.5392/03/NC/09 DTD. 12.7.2010. P3:- COPY OF THE REQUEST DTD. 17.7.2010. RESPONDENT'S EXHIBITS R1(a):- COPY OF THE LIST OF PROCESSED APPLICATION FOR THE 2010. TRUE COPY P.A. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) Nos. 23505/2010-K, 27196/2010-Y 27535/2010-N - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 1st day of October, 2010. JUDGMENT In these writ petitions the petitioners are mainly seeking for issuance of a writ of mandamus directing the respondent University to grant affiliation as sought by the respective petitioners. In W.P.(C) No.23505/2010, the affiliation is sought for the intake of 75 students for the B.Sc. Nursing Programme for the academic year 2010 – 2011. In W.P.(C) Nos.27196/2010 and 27535/2010 affiliation is sought for the post basic B.Sc. Nursing Programme for the academic year 2010-2011. 2. The common respondent in these writ petitions is the Kerala University for Health and Allied Sciences, which was established as per the Kerala University of Health and Allied Sciences Ordinance, 2009 (25/2009). This was established for the purpose of ensuring proper and systematic instruction, teaching, training and research exclusively in Modern Medicine, Homoeopathy and Indian Systems of Medicines including Ayurveda, Sidha, Yoga, Unani and allied sciences in the State of Kerala and to have uniformity in the various academic programmes in wpc 23505, 27196 & 27535/2010 2 Medical and allied subjects in the State. The necessary facts for the disposal of the writ petitions are the following: 3. In W.P.(C) No.23505/2010, the petitioner is the Principal of Upasana College of Nursing. The Nursing Council of India and the State Nursing Council have granted initial permission for imparting the B.Sc. Nursing Programme with an intake of 50 students in the year 2005 which was enhanced to 60 in the year 2008. Again in the year 2009 application was given for further enhancing the intake to 75. Ext.P1 is the proceedings evidencing approval granted by the Nursing Council of India for the increased intake of 75 seats. Similar is the proceedings Ext.P2 issued by the State Nursing Council for enhancing the annual intake by 75 students. According to the petitioner, it was granted after an inspection. Ext.P2 is dated 16/7/2010. Thereafter the petitioner approached the University by forwarding Ext.P3 application for grant of affiliation for the intake of 75 students, through E-Mail. On contacting further, the Registrar of the University informed orally that the application for the academic year 2010- 2011 is not being entertained by the University. It is the contention of the petitioner that as far as the Nursing Programme is concerned, the facilities of the institution are evaluated by the Nursing Council of India and further wpc 23505, 27196 & 27535/2010 3 by the State Nursing Council, especially with regard to the availability of infrastructural and instructional facilities. It is therefore pointed out that the University cannot go behind these proceedings and grant of affiliation is automatic. It is thus pointed out that they cannot refuse to accept the application for affiliation and process the same for the present year, viz. 2010-2011. It is pointed out that in the light of the Ordinance, the former Universities are statutorily barred from considering the application for affiliation for medical and para medical courses. 4. In W.P.(C) No.27196/2010, the petitioner was given approval and permission for imparting the post basic B.Sc. Nursing Programme and thereafter he approached the University for grant of affiliation through e- mail, as per Ext.P4. Exts.P1 to P3 are respectively, the NOC granted by the State Government, permission granted by the Central Nursing Council for commencing the programme with intake of 30 students and the permission granted by the State Nursing Council for starting the course during the year 2010-2011 with an intake of 30 students. Similar pleas have been raised in this writ petition also. 5. In W.P.(C) No.27535/2010, affiliation is sought for the post basic B.Sc. Nursing Course for which also the Nursing Council of India has wpc 23505, 27196 & 27535/2010 4 granted approval as per Ext.P10 which is followed by Ext.P11 permission granted by the State Nursing Council. Ext.P12 is the copy of the application submitted by the petitioner for affiliation and Ext.P13 is the reply given by the University stating that the application can be considered if the application previously submitted to the University of Kerala and its present status is forwarded to the University recommending to consider the same for the academic year 2010-2011. This was replied as per Ext.P14 by the petitioner, requesting to process the application and issue the same for the present academic year. Similar pleas have been raised in this writ petition also. 6. The University has filed a detailed counter affidavit in W.P.(C) No.23505/2010. The same stand has been adopted in the other writ petitions also during the course of the arguments. 7. Heard Shri George Poonthottam, learned counsel for the petitioners and Shri T.R. Ravi, learned Standing Counsel appearing for the respondent University. The contentions raised mainly by the learned counsel for the petitioners are that the Nursing Council of India and the State Nursing Council have granted approval after having conducted due inspection by the inspection teams and satisfied about the infrastructural wpc 23505, 27196 & 27535/2010 5 facilities and other factors relevant. It is submitted that as far as the facilities for additional intake of B.Sc. Nursing Programme and sanctioning of Post Basic Nursing Programme are concerned, the satisfaction required with regard to the infrastructural facilities and other factors including laboratory, library, etc. is on the part of the Central Nursing Council and the State Nursing Council. In that view of the matter, the University cannot have any role in the matter of conducting a fresh inspection to satisfy about the infrastructural facilities and other relevant factors. Therefore, it is pointed out that grant of affiliation is automatic. Reliance is placed on the recent decision of a Full Bench of this Court in Velayudhan Memorial Trust v. State of Kerala (2010 (3) KLT 367(FB)), State of Maharashtra v. Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya and others {(2006) 9 SCC 1) and that of another Full Bench of this Court in Vikram Sarabhai E. Trust & B.Ed. College v. University of Calicut (2008 (2) KLT 1027 (FB)). It is pointed out that the Full Bench in Vikram Sarabhai Trust’s case (supra) was of the view that the University is bound to grant affiliation to a B.Ed. College, for which College has obtained recognition under Section 14(3)(a) from the Southern Regional Committee of National Council for Teacher Education and that the Full Bench was also of the view wpc 23505, 27196 & 27535/2010 6 that the University cannot decline affiliation on the ground of lack of infrastructural facilities and that the application for the same was not submitted in time in terms of the provisions of the University Statutes. Inviting my attention to Velayudhan Memorial Trust's case (2010 (3) KLT 367 (FB)), it is submitted that therein this Court finally directed the University to give affiliation to each of the appellants in terms of the decision to be taken by the State Council for Nursing which indicates that the University has no other role but to grant affiliation. It is therefore pointed out that herein also the petitioners are entitled for issuance of a mandamus to the University to grant affiliation. It is contended that the stand of the University that the application for affiliation should have been submitted before 31st of August of the preceding academic year in which the courses are proposed to be started, cannot therefore be sustained, especially in the light of the fact that the approvals granted by the Central Nursing Council and the State Nursing Council are after the said date and that if the affiliation is not granted, the entire exercise will become futile. As a general proposition, it was contended that only where a University sanctions the particular course and grant affiliation, they can conduct inspection before granting it and where other bodies like the Nursing wpc 23505, 27196 & 27535/2010 7 Council are involved in the matter of grant of approval, the University is bound to grant affiliation. 8. Shri T.R. Ravi, learned Standing Counsel for the University submitted that in terms of the First Statutes introduced by the respective Universities, the application for affiliation shall be forwarded before 31st August of the preceding academic year in which the courses are proposed to be started and the petitioners were well aware of the same. It is pointed out that after the respondent University was established, the respective Universities have forwarded all the applications thus received, seeking for affiliation by the respective parties to the University and they have processed them accordingly. It is pointed out that even in respect of the petitioner in W.P.(C) No.23505/2010, an application for affiliation which was submitted for the M.Sc. Nursing courses before the Kerala University, has been forwarded to the respondent and is being processed also. If the petitioners had preferred the applications in time before the University of Kerala/M.G. University, etc., the same would have been forwarded to the respondent University and would have been considered also. Ext.R1(a) has been produced along with the counter affidavit in W.P.(C) No.23505/2010 which shows the details of the applications received for the year 2010-2011 wpc 23505, 27196 & 27535/2010 8 and the stages at which they have processed the applications as at present. It is further pointed out that the University has a role while granting affiliation and therefore it is not an empty formality. 9. Learned Standing Counsel for the respondent University further submitted that as far as the Central Nursing Council is concerned, they are only approving the qualification and not the infrastructural facilities. The approval is granted by the State Nursing Council in terms of the powers conferred under the Nurses and Midwives Act, 1953 (T.C.), Section 26. It is pointed out that the provisions of Section 26 and the regulations framed are not exhaustive. It is therefore submitted that the above Act being a State enactment, it cannot override the provisions of the Kerala University of Health and Allied Sciences Ordinance, 2009 and the provisions of the later enactment will prevail in case of an inconsistency. It is further pointed out that the principles stated by the Full Bench in Vikram Sarabhai E Trust's case (2008 (2) KLT 1027 (FB) will not apply to the facts of this case. It is also pointed out that the decision of the Full Bench in Velayudhan Memorial Trust's case (2010 (3) KLT 367 (FB)) would show that the role of the Central Council is limited to the approval of the qualification and therefore the petitioners cannot contend that since the wpc 23505, 27196 & 27535/2010 9 Central Council has approved the intake, the same is the result of an examination of the infrastructural facilities and other factors. Reliance is also placed on the decision of this Court in National Medical Education Charitable Trust v. Kerala Nursing and Midwifery Council (2006 (2) KLT 612), State of T.N. and another v. Adhiyaman Educational & Research Institute and others {(1995) 4 SCC 104} and Jaya Gokul Educational Trust v. Commissioner & Secretary to Govt., Higher Educational Department, Thiruvananthapuram, Kerala State and another {(2000) 5 SCC 231}. 10. Herein, it is not a case where the University has already rejected the applications for affiliation. The matter is only at the first stage, i.e. whether they could have accepted the application for affiliation and processed it after the deadline prescribed. Therefore, evidently as far as the grant of affiliation is concerned, there is no decision yet rejecting the applications of the petitioners. Non receipt of applications cannot be termed as refusal to grant affiliation itself. Therefore, for the purpose of issuing a writ of mandamus, evidently in the absence of refusal by the University, this Court is not called upon finally to decide whether an affiliation has to be granted automatically. But still learned counsel for the petitioners wpc 23505, 27196 & 27535/2010 10 submitted that in the light of the principles stated in the decisions relied upon by him, the affiliation is automatic and the question will have to be considered, for granting the relief sought for. 11. Therefore, I venture to consider the legal position laid down in the various decisions relied on by the learned counsel for the parties. 12.In Adhiyaman Educational & Research Institute's case {(1995) 4 SCC 104}, the question that arose for consideration was in relation to the provisions of All India Council for Technical Education Act, 1987, T.N. Private Colleges Act and Rules, 1976 and Madras University Act. The question was examined in the light of Article 254 of the Constitution of India regarding repugnancy in the legislations made by Parliament and the State legislatures. It was held that “ if there is a conflict between the two legislations, unless the State legislation is saved by the provisions of the main part of clause (2) of Article 254, the State legislation being repugnant to the Central legislation, the same would be inoperative. The All India Council for Technical Education Act, 1987, the Central Act, is fairly within the scope of Entry 66 of List I and Entry 25 of List III. Further, these regulations along with other regulations made by the Council and the rules to be made by the Central Government under the Act are to be laid before wpc 23505, 27196 & 27535/2010 11 Parliament. Hence, on the subjects covered by this statute, the State could not make a law under Entry II of List II prior to Forty-second Amendment or cannot make a law under Entry 25 of List III after the 42nd Amendment.” 13. In Jaya Gokul Education Trust's case {(2000) 5 SCC 231) also, the question was examined in the light of the provisions of All India Council for Technical Education Act, 1987 and the Kerala University First Statutes. While examining the role of the University, it was held that “no doubt, the question of affiliation was a different matter and was not covered by the Central Act and the University could not impose any conditions inconsistent with the AICTE Act or its Regulation or the conditions imposed by AICTE. Therefore, the procedure for obtaining the affiliation and any conditions which could be imposed by the University, could not be inconsistent with the provisions of the Central Act.” (para 22). 14. In Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya's case {(2006) 9 SCC 1}, the issue was examined in the light of the provisions of NCTE Act and the Maharashtra University Act, 1994. It was held that the University is bound to implement the decision of the NCTE and grant affiliation irrespective of the provisions of the Maharashtra University Act. The impact of the said decision was considered by the Full wpc 23505, 27196 & 27535/2010 12 Bench in Vikram Sarabhai E. Trust's case (2008) 2 KLT 1027 (FB), in the light of the earlier decision of a Division Bench of this Court in Rural Education and Social Trust v. University of Calicut (2007 (2) KLT 609) which also followed the above Supreme Court decision. 15. In Vikram Sarabhai E Trust's case (2008 (2) KLT 1027), the specific question considered was whether the University is bound to grant affiliation to a B.Ed. college, for which petitioner has obtained recognition under S.14(3)(a) from the Southern Regional Committee of National Council for Teacher Education. The impact of Section 14 of the Act was considered in detail. Going by Section 14(6)(a), every examining body shall, on receipt of the order under sub-s.(4), grant affiliation to the institution, where recognition has been granted. Therefore, the Bench held thus in para 11: “Going by the above statutory provisions, there cannot be any doubt that normally, once the Southern Regional Committee of the NCTE grants recognition to the petitioner's College, the examining body, that is, the 1st respondent University is bound to grant affiliation to the said College. The same cannot be denied, relying on the technical contention that the petitioner did not submit the application before the 30th October of the preceding year, in view of the decision of the Apex Court in State of Maharashtrav. Sant wpc 23505, 27196 & 27535/2010 13 Dnyaneshwar Shikshan Shastra Mahavidyalaya {(2006) 9 SCC 1).” In para 12, it was also held that “it is trite law that when the central body grants recognition, based on the finding that the College has necessary infrastructural facilities, the University has no power or authority to decline affiliation, on the ground of lack of infrastructural facilities. In view of the decision in Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya's case (supra), affiliation cannot be declined on the ground that the application for the same was not submitted in time in terms of the provisions of the Calicut University First Statutes. Going by the decision of the Apex Court in Jaya Gokul Educational Trust v. Commissioner & Secretary to Government (2000 (2) KLT 267 (SC)), the University can insist that the requirements as per the Statutes, which are not in conflict with the provisions of the Central Act and the Regulations, should be complied with, for grant of affiliation. The decision in Rural Education and Social Trust (supra) only lays down this principle.” 16. The said decision was rendered on the interpretation of the express terms of Section 14 of the NCTE Act. Learned Standing Counsel for the University submitted that on comparing with the provisions of the respective enactments herein, such is not the position and the Central wpc 23505, 27196 & 27535/2010 14 Nursing Council is not the one which is examining the question of infrastructural facilities and hence there is no inconsistency between the Central Act and the State Act. 17. In fact, the impact of Sections 10 and 14 of the Indian Nursing Council Act, 1947 and the powers and functions of the Central Nursing Council and the State Nursing Council have been examined by this Court in National Medical Education Charitable Trust v. Kerala Nursing and Midwifery Council (2006 (2) KLT 612). The contention raised therein was that going by the scheme of the Indian Nursing Council Act, the same occupies the field, concerning infrastructure facilities to be provided in a Nursing School. It was further argued that the provisions of the Travancore Cochin Nurses and Midwives Act are repugnant to the provisions of the Central Act and was unenforceable. After examining the provisions of these enactments, it was held in para 10 that “the Central 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 enrolment in the State Register. It also enables the Central Council, to de-recognise any recognised qualification awarded by any wpc 23505, 27196 & 27535/2010 15 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........... 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 for the qualification awarded pursuant to the training. Recognition or approval of institutions is essentially the function of the State Nursing Council.” Finally in paragraph 12 it was found that “the power/authority to approve/recognise an institution is essentially conferred on the State Council. Since the legislations occupy different fields, there is no question of any repugnancy.” 18. Therefore, the said dictum is a complete answer to the plea raised by the learned counsel for the petitioners particularly relying upon wpc 23505, 27196 & 27535/2010 16 Section 14 of the Central Act concerning withdrawal of recognition. Therefore, I cannot agree with the contentions raised by the learned counsel for the petitioners that it is for the Central Council to decide about the infrastructural facilities and the like matters apart from the State Council. It is only the State Council which is empowered to consider those aspects, as is clear from the above judgment. This legal position is further reiterated by the Full Bench in Velayudhan Memorail Trust's case (2010 (3) KLT 367 (FB)). Therein also, on the basis of the application of the petitioner therein, the Central Nursing Council sanctioned intake for the various courses. Later, the State council issued proceedings, wherein the intake approved was less than the intake purported to have been approved by the National Council. It is in the light of the above circumstances that the matter reached this Court. The petitioners sought for a direction to the respondents not to interfere with their right to admit students, as permitted by the Central Council into various courses. The various provisions of the Indian Nursing Council Act, 1947 were examined in detail by the Full Bench. The power of the State Council conferred under Section 26 of the Kerala Travancore Cochin Nurses and Midwives Act, 1953 and its scope was also examined. The Bench also considered the view taken in National wpc 23505, 27196 & 27535/2010 17 Medical Education Charitable Trust's case (2006 (2) KLT 612) and the said view was upheld. It was held in para 22 thus: “The authority of the National Council is limited to the establishment of standards of eduction which includes prescribing the appropriate syllabus, norms of training, prescription of appropriate infrastructure for conducting the courses etc. whereas 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.” Therefore, the legal position cannot be of any doubt in view of the authoritative pronouncement by the Full Bench in Velayudhan Memorial Trust's case (supra). The role of the Central Nursing Council is limited to approval of the qualification, syllabus, norms for training, etc. and the State Council may have to approve the infrastructural facilities. 19. In that view of the matter, it is not a case where there is any repugnancy between the Central Act and the University Act and the contention that the affiliation by the University is automatic without recourse to the time limit for filing application under the respective wpc 23505, 27196 & 27535/2010 18 University Statutes is not correct. 20. Shri George Poonthottam, learned counsel for the petitioners further submitted that the judgment of the