Prameela Adhar A.N.M. Training School, West Kashipur v. The State Of Bihar

Patna High Court CWJC No.19920 of 2012 (5) dt.08-01-2013 Of Bihar, New Secretariate, Patna

4. The Director, Department Of Health, Govt. Of Bihar, New Secretariate, Patna

5. The Deputy Director, Health Services , Department Of Health , Govt. Of Bihar, New Secretariate, Patna

6. Dr. Kumari Manju Asstt. Professor (Obs, Of Gyanac, P.M.C.H., Patna(Member)

7. Smt. Mariyamma Jakkariya , Junior Tuitor Of G.N.M.School, K.M.C.H. Muzaffarpur

8. Smt. Madhuri Kumari Jha, P.H.N., A.N.M.School, Muzaffarpur 9. The Secretary, Indian Nursing Council Sanyukt Parishad Bhawan, Kotla Road, Temple Lane, New Delhi-110002 .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Bishwa Bijay Kumar For the Respondent/s : Mr. Roy Shivaji Nath Aag3 ====================================================== CORAM: HONOURABLE MR. JUSTICE PRAKASH CHANDRA VERMA ORAL ORDER 5 08-01-2013 Heard learned counsel for the parties. Several Intervention Applications have been filed for intervening in the matter in order to support the Petitioner of the Writ Petition. Learned Counsel for the Respondents at the outset made objection. Learned Counsel for the Intervenors relied on the Judgement reported in 1986 PLJR 300 in which reliance has been placed on the Judgement as reported in 1981 B.B.C.J. 513 (Full Bench), 1982 PLR Page 72 as well as the order as passed in C.W.J.C. No. 4472/82 and the Intervenors prayed themselves to be allowed to be arrayed as Party in order to support the Petitioner. 3 Patna High Court CWJC No.19920 of 2012 (5) dt.08-01-2013 The Intervenors also claim to be similarly situated with the Writ Petitioner and seek same and similar reliefs as that of the Writ Petitioner and raises a common question of law and have even deposited the requisite Court Fee along with their Interlocutory Application and as such in view of the aforesaid law laid down, this Court does not have any hesitation in arraying them as Party in the Writ Petition in order to support the Writ Petitioner. I.A. Nos. 54, 55, 56, 57 & 58 of 2013 are allowed and they are arrayed as Petitioner No. 2 to 6 in the Writ Petition. Learned Counsel for the Intervenors is directed to array them as Writ Petitioner in the body of the Writ Petition during course of day. The Petitioners applied before the State Govt. for grant of recognition for conducting Auxiliary Nurse & Midwife (in short ANM) course enclosing all the necessary documents and relevant information. After scrutiny of all the documents and after removal of all the deficiencies, the Respondents decided for physical inspection of the Institutions by its duly constituted Inspecting team. Inspecting team of four members headed by one of the officer below the rank of the Joint Director of the Directorate were duly constituted by the Department of Health as per the provision contained in section 6 (III) (Ga) of Nurses Training Recognition, Affiliation & conduct of examination of school of Nursing Rules 4 Patna High Court CWJC No.19920 of 2012 (5) dt.08-01-2013

1997. From perusal of the record, it appears that the aforesaid team made physical inspection of the Institutions and made scrutiny of the entire Papers and submitted its inspection report to the State Govt. giving recommendation for grant of recognition for 60/50 students per batch per Session per Year. It appears that after submission of the inspection report, the Department was to issue the order of recognition as being done previously with regard to several other Institutions. It appears from the several recognition orders granted to the other Institutions as enclosed with the Writ Petition as well as Interlocutory Applications that the Department has been issuing the order of recognition on the basis of the recommendation made by the Inspecting team. It has been brought to the notice of this court that the Department has issued order of recognition to several Institutions even in the year 2012. However for one reason or the other, it appears from the noting of the file as obtained under Right to Information Act by some of the Petitioners that there became certain controversy between the Department at the Secretary level and the Minister of the Department with regard to the fact that the State has no jurisdiction to issue the order of recognition for conducting ANM Course and it can only issue N.O.C. It has been submitted by the learned Counsel that even there is approval of the Minister of the 5 Patna High Court CWJC No.19920 of 2012 (5) dt.08-01-2013 Department in some of the files that the necessary order of recognition should be issued in favour of the Institution in view of the recommendation of the Inspecting team but the same has not been issued for no latches on the part of the Petitioners. Now the issue which has to be decided by this Court is whether the State is competent to grant recognition for conducting ANM Course or not. Similar issue came up for consideration before this Court in C.W.J.C. No. 13556/2012 and the Counter Affidavit filed by the Respondents State in the said Writ Petition has been brought on record in which it has categorically been stated in Para 11 that the state Govt. is not competent authority for grant of recognition to any Institution running ANM Course and therefore the Institute should have approached the Indian Nursing Council for grant of recognition for conducting ANM Course. The Respondent State brought on record the letter dated 09th of January 2012 of the Indian Nursing Council issued by its Secretary making it the basis for not granting recognition. During course of argument, the learned counsel for the Respondents could not demonstrate from any of the documents or the Rules framed by the State Govt. that the State Govt. has no power to grant recognition rather the documents brought on record 6 Patna High Court CWJC No.19920 of 2012 (5) dt.08-01-2013 show otherwise which would even be apparent from the opinion of the learned Advocate General dated 10.10.2009 who has opined the Department relying on the aforesaid Division Bench of this Court that the State is competent to grant recognition for conducting ANM Course. The relevant portion of the detailed opinion of the learned Advocate General is being quoted as follows: “In view of the above, in my considered opinion, the State Govt. would be competent to permit establishment of a training Institution for the nurses to the extent that Certificates issued by Bihar Nurses Registration Council is recognized under Central Act of 1947. Once the State Govt. grants permission for establishment and accords recognition in consultation with the State Nursing Registration Council, it would always be open for the Indian Nursing Council to conduct inspection as envisaged under the Central Act or Rules and Regulations framed thereunder. There is no legal necessity of obtaining prior permission of the Indian Nursing Council for establishment of a training Institution” The learned Counsel for the Respondents have only relied on the letter dated 09.01.2012 of the Indian Nursing Council in order to Justify their stand that the State has no Jurisdiction. The stand of the Respondents in not granting recognition to the 7 Patna High Court CWJC No.19920 of 2012 (5) dt.08-01-2013 Petitioners appear to be in teeth of the well decided Judgment of the Division Bench as reported in 1993(2) PLJR Page 479. The stand of the Respondents also appear to be wholly discriminatory in grant of recognition as from several of the recognition orders brought on record by the Petitioners, it would be apparent that the Respondents have granted and issued the order of recognition for conducting ANM course in exactly similar circumstances i.e. on the basis of the inspection report of duly constituted enquiry committee in the year 2011 and 2012 and as such there seems no reason to deny the said benefit to the Petitioners as they are similarly situated to those who have been issued the order of recognition. The stand of the Respondents in not issuance of the order of recognition on the basis of the letter dated 09.01.2012 also appears to be wholly misleading. Educational and training institutions can be established by State or any non-state entity, even by private individual or group of persons/association. However, in the pre and post independence era the concept of “recognition” of such institutions were evolved primarily to regulate such institutions to maintain a prescribed standard in such educational and training institutions. The State governments were empowered to prescribe rules and regulations for grant of recognition. The legislature enacted Law empowering 8 Patna High Court CWJC No.19920 of 2012 (5) dt.08-01-2013 State agencies or specialized agencies for the purpose. It was expected by such agencies to exercise its statutory power in impartial and fair manner in accordance with law. However, the agencies sometimes failed to follow the statutory mandates leaving no option to the courts to issue appropriate orders interfering the discretionary powers of the State instrumentalities. The Present case is one of such instances where the State has not only violated the statutory provisions, but has violated the binding judicial pronouncements regarding grant of recognition to nursing institutes. The State Government also seek to adopt a new stand that it does not have power to grant recognition despite having framed Rules of 1997 for grant of recognition. The state agencies have failed to appreciate that refusal of recognition to educational and training institutions, which fulfils the requisite criteria, in States like State of Bihar adversely affect the academic standard and prospect of youths in the State. The nursing institutes, which provides training to girls should be promoted and the State should act as facilitator. The Bihar & Orissa Nurses Registration Act, 1935, the Indian Nursing Council Act, 1947, Nurses Training- Recognition, Affiliation and conduct of examination of School of Nursing Rules, 1997 and several 9 Patna High Court CWJC No.19920 of 2012 (5) dt.08-01-2013 decision of this Court reported in 1993(2) PLJR 1993 (D.B.), 1993 (1) BLJR Page 37 (D.B.) makes it a mandate for the State to grant recognition, if the institute fulfils the requisite standard/criteria for the recognition. It goes without saying that if any Deficiency at any stage would be found in any of the Institutions after grant of recognition, the Respondents will give adequate opportunity to the Institution to remove the same within a time frame and the Institutions are obliged to remove the same within the time frame indicated by the Respondents. The State could not place on record any change in statutory provision or subsequent decision overruling the decision of the Division bench of this Hon’ble Court. The authorities have deviated from its previous Stand of 75 years (since 1935) without reasons and basis for the reasons best known to them. From the perusal of records it appears that it is the subjective decision of the Executives and contrary to the opinion of the learned Advocate General on the issue. The officer has usurp the power of court and endeavor to give its own interpretation of law by declaring that the State has power only to grant no-objection certificate and not recognition to such institutions. In view of the aforesaid discussions as made above, this Court in C.W.J.C. No. 13556/2012 has already held that the letter 10 Patna High Court CWJC No.19920 of 2012 (5) dt.08-01-2013 dated 09.01.2012 issued by the Secretary of the Indian Nursing Council has no force and is against the provision of the Bihar & Orissa Nurses Registration Act 1935 as well as Rules 1997 and as such the letter dated 09.01.2012 issued by the Indian Nursing Council has been quashed. This court further holds that the State Govt. is the competent authority to grant recognition for conducting ANM Course. In view of the Inspection report submitted by the duly constituted inspecting team of the State Govt. as per Rules 1997, the State Govt. is hereby directed to issue the order of recognition in favour of the Institutions for the seats recommended by the Inspecting team within one week from the date of receipt of certified copy of the present order by the Petitioners and if the order of recognition is not issued by the State Govt. within the aforesaid stipulated time frame, the Institutions will initiate the process of Admission after taking entrance test on the recommended Seats for the ongoing Session by publishing an Advertisement in the Daily News Paper and will continue their Academic Programme in accordance with law. The State Govt. would also send the list of students to the respective Institutions who would pursue their studies under the reserved Quota of State Govt. as per section 5(i) of the Rules 1997 within a period of four weeks. The State Govt. would take all steps in accordance with 11 Patna High Court CWJC No.19920 of 2012 (5) dt.08-01-2013 law so that the career of the students pursuing their studies in the Institution may not spoil for latches on their part. The State Govt. would complete all the formalities on their part in the meanwhile for sending the list of the Institutions to be inspected by the Indian Nursing Council in accordance with law. Learned counsel for the Petitioners submitted that though the last date for applying before the Indian Nursing Council was 31st of December 2012 but the Institutions could not apply as the State Govt. had not issued the formal order of recognition and as such in view of the positive direction by this Court to the State Govt. for grant of recognition, the Indian Nursing Council may be directed to accept the proposal of the Petitioners by 31st of January

2012. This Court can not issue Mandamus to the Indian Nursing Council in view of the admitted fact that the last date for applying has already expired and as such the said prayer of the Petitioners is hereby rejected. With the aforesaid direction/observation, the Writ Petition is disposed of. (Prakash Chandra Verma, J) Mkr./-