K RAMACHANDRA NAIDU TELUGU MINORITIES EDUCATIONAL AND CHARITABLE TRUST Vs. TAMILNADU DR M G R MEDICAL UNIVERSITY

JUDGEMENT

(1.) IN Writ Petition No.35544 of 2003, the petitioner- institution seeks for the issuance of a Writ of Mandamus to direct the respondent to grant provisional affiliation to start five year B.Sc.,(Nursing course) in the petitioner college for the Academic Year 2003-2004 pursuant to their applications dated 29.9.2000 and 21.1.2002. 2. The following facts are not in dispute. The petitioner institution obtained approval from the State Government on 21.8.2000 to start the Nursing Course. On 29.9.2000, the petitioner applied for affiliation from the respondent University. On 12.10.2000, certain particulars were called for, which were complied with by the petitioner institution on 17.2.2001. An inspection committee was constituted on 21.6.2001. INspection was conducted on 27.7.2001. Certain defects were pointed out by the University by its letter dated 24.8.2001, which according to the petitioner were complied with by 4.9.2001. The University registered the application of the petitioner on 13.9.2001. Thereafter the petitioner submitted the requisite forms on 10.1.2002 and 21.1.2002. By the letter dated 28.1.2002, certain defects were again pointed out which according to the petitioner were rectified on 4.4.2002. Another inspection committee was constituted on 20.9.2002 and as certain defects were pointed out, the same were rectified on 19.12.2002. By the letter dated 29.10.2003, Nursing Council granted permission. As there was no response from the University, the petitioner has filed the above writ petition seeking for mandamus as stated above. 3. However, in the mean time, the respondent University had informed the petitioner that in terms of the latest amendment to the University affiliation of Nursing Statutes, 150 bedded (own) hospital was necessary to consider the issue of provisional affiliation for starting a Nursing College. With the result, the petitioner was directed to complete the construction of the Nursing Hospital and report to the University for further action. 4. Aggrieved by the same, the petitioner has filed W.P.No.7618 of 2004 praying for the issuance of a writ of certiorarified mandamus to call for the records of the first respondent relating to the amendment to Statute 4(ii)(a)& 8 of Tamil Nadu Dr.M.G.R.Medical (Affiliation of Nursing Colleges) Statues dated 24.12.2002, to quash the same so far as the petitioner is concerned and to direct the respondent to issue provisional affiliation to the petitioner for the Academic Year 2004-2005 pursuant to its application dated 29.9.2000 and 21.1.2002 with an intake of fifty students. 5. The Learned counsel for the petitioner, in support of her contention has stated that the amendment was unsustaintable in law and at any rate not applicable to the petitioner. The amendment was contrary to the decision of the Supreme Court in Thirumuruga Kirupananda Variyar Thavathiru Sundara Swamigal Medical Educational & Charitable Trust Vs State Of Tamil Nadu And Others 1996 3 SCC P.15 in which the Supreme Court has held that the State Government cannot lay down a policy decision on a matter which vests with the competent authority under the Central Act. It is only the body created under the Central Act which is entitled to exercise the power and it will not be open to the body created under the State Act to exercise such power by laying down certain terms and conditions which are repugnant to the terms laid down under the Central Act. 6. IN the counter filed by the respondent University, it is contended that though the petitioner obtained permission from the Nursing Council of INdia, the petitioner does not own a hospital being run by itself with not less than 150 beds as required by the University, vide the amended provisions. Amended provisions came into force on 24.12.2002 and the institution was rightly requested to fulfill the said requirement and to produce evidence to the University for considering the request for affiliation to start the B.Sc., (Nursing Course) for the Academic Year 2004-2005. The amendment has been communicated to all the Nursing institutions which are already affiliated to the university and in terms of the proviso, the existing institutions are expected to comply with the requirement under the amendment within a period of five years. 7. Ms.B.Saraswati, learned counsel appearing for the petitioner contends that the application of the petitioner is pending with the University for the past four years and therefore it is unjust for the University to insist on the petitioner to fulfil the requirement which came to be introduced by way of amendment only during December 2002. Learned counsel further refers to the Judgment of the Supreme Court in State Of Tamil Nadu And Another Vs. Adhiyaman Educational & Research INstitution And Others 1995 4 SCC 104 in support of her contention that State Acts cannot lay down standards and requirements higher than those prescribed by the Central Act for technical institutions and cannot deny situations/seats to the applicants on the ground that they do not fulfil such higher standards/ requirements. Learned counsel also contends that the said amendment cannot be given retrospective effect. 8. Mr.K.Vellaisamy, learned counsel appearing for the University after stating that the amendment came into force in December 2002 contends that as the petitioner institution was not affiliated by that time, the amendment was very much applicable. The contention of the petitioner that the amendment at any rate cannot be given retrospective effect, is also denied. Learned counsel relies on the Judgment of the Supreme Court in Punjab University Vs. Subash Chander AIR 1989 SC 1415. Mr.Vellaisamy also contends that in terms of the Judgment of the Supreme Court in Thiru Kripananda Variyar Trust Vs State Of Tamil Nadu 1996 3 SCC 15, the State was empowered to bring forth any amendment as long as the conditions do not conflict with or are repugnant to the Central Act. It was open to the University to prescribe higher qualifications and the same was not prohibited in terms of the Judgment of the Supreme Court in State Of Tamil Nadu And Another Vs.Adhiyaman Educational & Research INstitute And Others, cited supra. Reliance is also placed on the judgment in State Of Tamil Nadu Vs S.V.Pratheep -(2004)4 SCC 513. 9. I have considered the submissions of both sides. Having regard to the facts and circumstances of the case, it is not necessary to go into the question of the validity of the amended provisions and as to whether it runs contra to the Central regulations and whether they are repugnant to the Central regulations or not. IN this case, it is not denied that the application of the petitioner is dated 29.9.2000 which was very much earlier and before the amendment. A reading of the amended statute will show, that it will apply only prospectively and cannot be applied to the existing institutions. Amendment is as follows:- The amendments hereby made shall come into force on 24.12.2002 on which date they have received the assent of the Chancellor, communicated in Lr.No.4311/U2/2002, dated 24.12.2002. AMENDMENTS IN the said statutes, (1) IN statutes 4(ii)(a) shall be substituted as follows:- "The applicant college shall own and possess a hospital being run by it with not less than 150 beds with the specialities of Medicine, Surgery, Obstetrics and Gynaecology and Orthopaedics /Paediatric preferably: Provided that such of those institutions who are already conducting B.SC.(Nursing) Degree course on the date of assent of these statutes shall equip themselves with a 150 bedded hospital within a period of 5 years." (2) IN statute 8, for the existing provisions in Clause(a), the following shall be substituted. "The hospital shall also have the departments of E.N.T., Radiology, Opthalmic, Burns, Oncology, Emergency Casuality and Clinical Laboratory to facilitate training of the nursing students in the above said departments". 10. A reading of the amendment shows that the amendment came into force only on 24.12.2002 on which date it received the assent of the Chancellor. The proviso to the amendment also throws further light on how the proposed amendment was intended to operate for the existing institutions, and the proviso stipulates a period of five years for the existing institutions, who were already conducting B.Sc.,(Nursing)Degree Course to equip themselves with a 150 bedded hospital within a period of five years. 11. If that be so it will be unreasonable to hold that an INstitution which had applied for affiliation to the University and the application has been already considered in terms of the unamended provisions, should comply with the onerous requirement of owning a 150 bed hospital. It is not disputed before me that as on date the Government does not require the institution to be possessed of a hospital run by itself. IN G.O. Ms.No.300, Health and Family Welfare Department, dated 1.11.2001, the Government has laid down that though the private institutions who were able to provide for 150 bedded hospital should alone be considered since such hospitals are essential for clinical training of their students, it is further held that attachment of hospital may also be allowed subject only to the condition that the same hospital should not be shown by any other institution. IN terms of the said requirements, admittedly the petitioner has entered into a tie up for clinical facility by various agreements dated 9.9.1998, 10.9.98 and 10.4.1999. All these requirements were in fact accepted by the University and all that was required by the University by their letter dated 5.3.2003 was only to obtain assent and suitability certificate from INdian Nursing Council. This letter was in fact sent after the amendment. The University itself has rightly understood the scope of the amendment as not applicable to the applications which have been duly processed and inspection completed. 12. That apart, learned counsel for the petitioner has also produced a letter from the INdian Nursing Council dated 8.3.2004. The Nursing Council has stated that as per the INdian Nursing Council regulations, for the opening of College of Nursing, parent hospital is not essential and that the College of Nursing can have affiliated hospital for clinical experience. 13. Therefore, Without going into the contentions regarding the validity of the impugned amendment which in effect prescribes the need for own hospital which requirement is not necessary in terms of the regulations prescribed by the State Government and the INdian Nursing Council, it is sufficient to hold that the amendment cannot be applied to the petitioner institution, which had applied for affiliation to start the course much earlier on 29.9.2000 itself, and by the letter dated 5.3.2003, all that the University had required was approval from the Nursing council. 14. The decision relied on by the learned counsel in Punjab University Vs. Subash Chander AIR 1989 SC 1415 will not apply to the facts of the present case. That was the case of grant of grace marks for candidates who had appeared for the University Examination. The candidate who had appeared for the examination in 1974, contended that the grace marks awardable in terms of 1965 regulations should be made applicable to him. The Supreme Court considered the issue in detail and held that the petitioner cannot have the benefit of an old rule or regulation. 15. Here is a case, where an educational institution had spent considerable amount for its infrastructural facilities based on the requirements as on the date of the application and had also complied with and rectified all the requirements / defects as pointed out by the University. By referring to a subsequent amendment, such onerous conditions cannot be imposed on the petitioners so as to completely disentitle them to start the institution which they were otherwise entitled to. The onerous nature of the requirements, is understood and appreciated by the University itself which is evident from the fact that with reference to the existing institutions a period of five years is given for the institutions to equip themselves with their own 150 bedded hospital. This would imply that the applicant in this case and other similarly placed institutions who are otherwise ready to take-off as on date in terms of the existing requirements, should have to wait for a long period of at least 3 or 4 years if not five years, for their institutions to be equipped with their own hospital. This would be a very unreasonable and unfair expectation. If the existing institutions can be allowed to run without their own hospital for another five years, petitioner and similarly placed institutions also can be treated in the same manner. The University while enacting or amending a regulation/statute, cannot claim any absolute right to prescribe a requirement which is unreasonable and inequitable or impossible of performance. What about the investment already incurred by the petitioner institution and can they be reasonably expected to wait for few more years is the question which has to be posed for consideration while interpreting the amendment. If even the validity of a legislation of a State legislature or Parliament could be tested on the touchstone of reasonableness and be interpreted by Courts by reading down the provisions or by adopting purposive interpretation, there is no reason why the impugned amendment could not be held only as prospective and as not applicable to pending applications. More so in the case of the petitioner who had complied with all the requirements and directions of the University on 19.12.2002 itself, whereas the amendment was ratified only on 24.12.2002. 16. Therefore on a careful consideration of all the provisions, I am inclined to hold that the impugned amended provisions will apply only to fresh applicants for affiliation subsequent to the date of the amendment and will not apply to the case of the petitioner herein. 17. With the result, the petitioner is entitled to succeed and Writ Petition No.35544 of 2003 is allowed with a direction to the respondent to grant provisional affiliation without taking into account the impugned amendment dated 24.12.2002. As far as the Writ Petition 7618 of 2004 is concerned, it is not necessary to go into the validity of the amendment. The issue as to whether the University will have the power to impose the need to have own hospital even though in terms of the regulations of the Nursing Council and the G.O. issued by the State Government there is no such requirement, is left open. It is sufficient to hold that the said amendment will not apply to the petitioner institution. The writ petition is ordered accordingly. No costs. Consequently, connected miscellaneous petition is closed. Considering that the cut off date for admission to the course for the Academic Year 2004 """ 2005 is 30.9.2004, the respondent is directed to pass appropriate orders on or before 10.9.2004.