Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.20142 of 2012 ====================================================== 1. Humanity Care Nursing & Paramedical College, Ahiyapur Muzaffarpur Bihar through its Secretary, Surendra Kumar Mahto aged about 32 years son of Shri Raghunath Mahto resident of Village- Padmaul, P.S. Kurhni, District- Muzaffarpur. 2. Holy Mission School of Nursing, Nalanda through the Secretary of Swami Vivekanand Educational and Social Welfare Trust namely Prabhat Singh, aged about 55 years, Son of Shri Chandrakant Prasad Singh, Resident of Village -Bakhtiyarpur Main Road, P.O. + P.S. - Bakhtiyarpur, District -Patna. 3. M.G.M. Nursing Training School, Patna through the Secretary of Prakhar (N.G.O.) namely Seema Mishra, aged about 34 years, W/O Dr. P.P. Mishra, Resident of Jagat Narayan Road, P.S. - Kadam Kuan, District - Patna. 4. Maa Kamla Chandrika Jee Nursing Training School, P.G. Road, Jahanabad through the Trustee of National Education Development Trust namely Sanjay Kumar aged about 36 Years, S/O Dr. Chandrika Prasad Yadav, Court Area, Horrilganj, P.S. - Jahanabad, District - Jahanabad. 5. Yamuna Institute of Nursing, B.M. Hospital Campus, Bishnupur, District -Begusarai the President of Orhul Yamuna Foundation (N.G.O.) namely Dr. Ramashray Singh, aged about 60 years, Son of Late Yamuna Singh, Resident of Mohalla - Pokhariya, P.O. + P.S. & District _ Begusarai. through 6. Chanakya Institute of Health Education and Research through the Chairman cum Managing Trustee, Chanakya Foundation namely Ashok Gagan, Son of Late Shri Narayan Sharma, Chanakya Nagar, Beli Road, P.S. - Khagaul, Patna. 7. Vivekanand School of Nursing and Paramedics through the Secretary Vivekanand Paryavaran Evam Arogya Mission Namely Divya Jyoti wife of Shri Ashok Gagan, Anandpuri, West Boring Canal Road, Police Station Sri Krishnapuri, Patna, District - Patna. 8. Sri Narayan Babuni A.N.M. Paramedical Institute through the Secretary Sri Narayan Babuni (SNB) Foundation Trust namely Bijay Kumar, Son of Late Sri Narayan Sharma, Amhara, Police Station - Bihta, District - Patna. 9. Narmada A.N.M. paramedical Institute the Secretary and Mountain Development Association through National Rural 2 Patna High Court CWJC No.20142 of 2012 (6) dt.08-01-2013 2 / 14 (NARMADA) namely Arvind Pandey son of Ram Rajiv Pandey, Brindavan Colony, Phulwarisharif, Patna. 10. Bihar Raj A.N.M. Nursing Institute, Patna through the Settlor of Maa Saraswati Educational Trust, Patna namely Ranjit Singh aged about 42 years, Son of Late Manohar Prasad, Resident of Village - Sultanpur, P.O. -Jagai, P.S. - Ekangarsarai, District - Nalanda. 11. Bimla Nursing School, Karaipar Sarai, Nalanda through the Secretary of Suresh Chandra Ramyasi Devi Shaikshanik Evam Samajik Seva Sansthan namely Shri Digvijay Kumar, aged about 55 years, Son of Shri Suresh Chandra, At Sandh, P.O. - Bahper, P.S. - Karai Parsurai, District - Nalanda. 12. Bimla Memorial Para Medical & A.N.M. Training School, Bimla Nagar, P.O. - Manoharpur Kachhuara, P.S. - Gaurichak, District - Patna through the Chairman of Bimla Memorial Shaikshanik & Samajik Seva Sansthan namely Suresh Prasad Singh, aged about 50 years, Son of Shri Baldeo Singh, at Chhittar Bigha, P.O. - Medhma, P.S. - Karaipar Sarai, district -Nalanda. 13. Prem Murti A.N.M. Training School, P.O. + P.S. - Shastri Nagar through the Secretary of Kusum Mahila Vikas Samiti namely Manoj Kumar Sinha, aged about 48 years, Son of Late Harishchandra Prasad, Resident of Panchvati Colony, P.O. - Anisabad, P.S. - Beur, District - Patna. 14. Nalanda School of Nursing, Chandi, Nalanda through the Director of Sai Raghunandan Educational & Social Trust namely Mithilesh Kumar aged about 37 years, Son of Chhote Lai Kewat, Resident of Village - Satnag, P.S. - Chandi, District - Nalanda. 15. Jiya A.N.M. School, Brhmpura, Phulwarisharif, Patna through the Settlor of Maa Shyam Sunder Educational & Welfare Trust namely Dr. Jitendra Kumar aged about 28 years, Son of Late Dr. Ram Prasad Singh, Resident of Village - Brahmpura, P.O. + P.S. - Phulwarisharif, District - Patna.
Legal Reasoning
16. Ashoka Nursing & Para Medical College, Barhai Tola, Patel Nagar, P.O. & P.S. - Islampur, (Nalanda) through the Settlor President of Aryan Abhishek Educational Trust namely Ranjeet Kumar aged about 24 years, Son of Shri Arvind Prasad, Village - Lachhubigha, P.O. - Mahanandpur, P.S. -Nagarnausa, District - Nalanda. 17. Maa Yashoda A.N.M. Nursing School, Jadhua, Chiknauta, Hajipur, Vaishali through the Managing Trustee of Yashoda Shyam Nandan Educational Trust namely Prabhash Kumar Singh, aged about 45 3 Patna High Court CWJC No.20142 of 2012 (6) dt.08-01-2013 3 / 14 years, Son of Shyam nandan Prasad Singh, Resident of Village - Rahsa East, P.O. + P.S. - Bhagwanpur, District - Vaishali. 18. Lav Kush Para Medical & Nursing Training Sansthan (A.N.M. School), Faizalganj, behind Sher Shah Hotel, At + P.O. - Sasaram, District-Rohtas through the Secreatry of the Managing Committee namely Sri Mato Raman Seva Sansthan namely Narendra Kumar Singh, of Late Radha Raman Singh, At + P.O. - Araruan, P.S. - Kargahar, District- Rohtas. years, about aged Son 43 1 9 . Rajgir A.N.M. Nursing School, Rajgir, District - Nalanda through the General Secretary Gautam Buddha Educational Health and Social Trust Rajgir, Nalanda namely Sanjay Kumar aged about 40 years, Son of Jagdish Singh, Resident of Bus Stand, Near Pachrukhi Kuan, P.O. + P.S. - Rajgir, District – Nalanda. 20. Raj Kumari Nursing Training School, Handloom Bhawan, Rejendra Nagar, Patna through the Secretary of M & R. D. P. Welfare Council, Patna namely Vijay Shankar, aged about 57 Years, Son of Shri Rama Prasad, Resident of Siyaram Bhawan, Dariyapur Gola, P.O. & P.S. - Kadam Kuan, District -Patna. 21. Saumya Krishna ANM: Training School, Maurya Path, Khajpura, Patna through the Secretary of Madhepura Matribhani Seva Sansthan namely Shiv Krishna Mandal, aged about 34 Years, Son of Shri Bindeshwari Prasad Mandal, House No. - 7, Road No. 3, East Patel Nagar, Patna. 22. Chhaya Institute of Nursing Science, Raja Bazar, Patna through the Secretary of Chhaya Educational & Welfare Trust namely Shiv Krishna Mandal, aged about 34 Years, Son of Shri Bindeshwari Prasad Mandal, House No. —7, Road No. 3, East Patel Nagar, Patna. 23. Veer Kunwar Singh, Main Road, Arra, Bhojpur through its Director namely Manoj Kumar, aged about 37 years, Son of Shri Rameshwar Pandey, Resident of Vijay Nagar, Shiv Mandir, P.S. - Shastri Nagar, P.O. -Vetenary, District - Patna. 24. Shri Rai Bahadur Ram Chandra Ram Lakshmi Narayan Nursing Training School, Kurtha, Tehta, Jahanabad through its Secretary namely Chandra Prakash, aged about 30 years, Son of Dr. Chandrika Prasad Yadav, Resident of 101, Patna Dental Hospital Building, Exhibition Road Chowk, P.S. -Gandhi Maidan, Patna. 25. Saroj Nursing Institute, Race Course, Chakkar Maidan, Muzaffarpur through its Secretary namely Dr. Lok Shakti, Son of Shri Hind 4 Patna High Court CWJC No.20142 of 2012 (6) dt.08-01-2013 4 / 14 Keshari Yadav, Resident of Race Course, Chakkar Maidan, P.S. - Kazi Mohammadpur, District - Muzaffarpur. 26. Dr. Nesar Haider Institute of Nursing Science, Sakri Madhubani thorough its Secretary Dr. Nesar Haider, Son of Zulfekar Haider, P.O. & P.S. - Sakri, District - Madhubani 27. Chanakya School of Nursing & Para Medical, Koielwar, Bhojpur through Chairman cum Managing Trustee namely Ashok Gagan, Son of Late Shri Narayan Sharma, Chanakya Nagar, Beli Road, P.S. - Khagaul, Patna. ....... Petitioners Versus 1. The State of Bihar through the Principal Secretary, Department of Health, Govt. of Bihar, New Secretariat, Patna. 2. The Principal Secretary, Department of Health, Govt. of Bihar, New Secretariat, Patna. 3. The Director In-Chief, Health Services, Department of Health, Govt. of Bihar, New Secretariat, Patna. 4. The Director, Department of Health, Govt. of Bihar, New Secretariat, Patna. 5. The Deputy Director, Health Services, Department of Health, Govt, of Bihar, New Secretariat, Patna. 6. The Union of India, Nursing Council of India through its Secretary, Joint Council Bhawan, Kotla Road, Temple Lane, New Delhi – 110002. 7. The Secretary, Nursing Council of India, Joint Council Bhawan, Kotla Road, Temple Lane, New Delhi – 110002. .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Kaushal Kishor For the Respondent/s : Mr. Kundan Bhadur Singh Sc22 Mr. S.N. Pathak, Sr.SCCG. N.C.T. ====================================================== CORAM: HONOURABLE MR. JUSTICE PRAKASH CHANDRA VERMA ORAL ORDER 6 08-01-2013 This writ petition has been filed for issuance of an appropriate writ in the nature of mandamus commanding the respondents to grant and issue the order of permanent recognition 5 Patna High Court CWJC No.20142 of 2012 (6) dt.08-01-2013 5 / 14 in favour of the Institution for conducting A.N.M. Course. 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. 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
Decision
in the Writ Petition in order to support the Writ Petitioner. I.A. No. 142/2013 in C.W.J.C. No. 20142/2012 is allowed and they are arrayed as Petitioner No. 2 to 27 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. 6 Patna High Court CWJC No.20142 of 2012 (6) dt.08-01-2013 6 / 14 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 informations. 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 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 7 Patna High Court CWJC No.20142 of 2012 (6) dt.08-01-2013 7 / 14 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 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 8 Patna High Court CWJC No.20142 of 2012 (6) dt.08-01-2013 8 / 14 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 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 9 Patna High Court CWJC No.20142 of 2012 (6) dt.08-01-2013 9 / 14 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 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 10 Patna High Court CWJC No.20142 of 2012 (6) dt.08-01-2013 10 / 14 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 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 into 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 11 Patna High Court CWJC No.20142 of 2012 (6) dt.08-01-2013 11 / 14 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 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 12 Patna High Court CWJC No.20142 of 2012 (6) dt.08-01-2013 12 / 14 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 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 13 Patna High Court CWJC No.20142 of 2012 (6) dt.08-01-2013 13 / 14 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 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 14 Patna High Court CWJC No.20142 of 2012 (6) dt.08-01-2013 14 / 14 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. Mkr./- (Prakash Chandra Verma, J)