G.D.SHARMA Vs. STATE OF H.P.

JUDGEMENT

(1.) The petitioner, in this writ petition, has prayed for the following main reliefs, viz : (i) that the respondent No. 2 may be directed to conduct the first year Annual Examinations of three years General Nursing Course of the Students of Gandhi Memorial Medical Training Institute and Hospital, Pathankot, to be conducted in last week of October, 1993 ; (ii) That the respondent No. 2 may be directed to conduct the said Examination in the above said Institute or in the alternative in some other Institute by giving sufficient advance notice to the Institute ; (iii) That the respondent No. 2 may be directed to declare the result of the said examination ; (iv) That the respondent No. 2 may be directed to hold regular examinations in future for all the courses in accordance with the guidelines and instructions of Indian Nursing Council from time to time.

(2.) In so far as reliefs No. 1 to 3 prayed for by the petitioner and set out above are concerned, the petitioner cannot be given any relief at this stage with reference to the first year Annual Examination in October, 1993 and other related reliefs No. 2 and 3 above, as that examination had been held long back and the results had also been declared. What survives, therefore, for consideration, is relief No. 4. in regard to the holding of the regular examinations in future. The availability of that relief to the petitioner would depend upon whether any recognition had been accorded to the Institute said to be run by the petitioner by the proper authorities in that regard, as one which can impart instructions in Nursing conforming to the several academic requirements and laboratory needs etc. for imparting such instructions. It would, therefore, be necessary to make a reference to the provisions in the relevant enactment dealing with -Nursing in so far as State of Himachal Pradesh is concerned. By an Act called the Himachal Pradesh Nursus Registration Act, 1977, (Act No. 15 of 1978) thereinafter called as the Act provision made was for the registration of -Nurses, Health visitor, auxiliary nurse -midwife, and dai and the Act extends to the whole of Himachal Pradesh. Section 2 of the Act, defines among others, the word Council as meaning the Himachal Pradesh Nursus Registration Council, established under section 3. Section 3 of the Act envisages the establishment and constitution of a Council known as "The Himachal Pradesh Nurses Registration Council for the purpose of carrying out the provisions of the Act and the Council shall consist of members as detailed in section 3 (2) of the Act. Section 3 (3) of the Act refers to the Council as a body corporate with the name, Himachal Pradesh Nurses Registration Council, having perpetual succession and a common seal and shall sue and be sued by the said name. Section 15 of the Act enables the Council to appoint a Registrar with the previous approval of the State Government. The duties of the Registrar have been enumerated under section 16 and one of such duties is to act as a Secretary to the Council. Section 17 of the Act provides for regulations to be made by the Council for all or any of the purposes set out therein and most of the regulations relate only to internal matters of the Council. Section 23 of the Act empowers the Council, after previous publication, to make bylaws. Under section 23 (a) of the Act, the council is empowered to prescribe the course of training of, and -qualification for the registration of nurses, health -visitors, midwives, auxiliary nurse, midwives, nurse -dais, trained dais or dais and to provide for the recognition of Institution competent to give such training. Sub -clause (g) of section 23 confers powers on the Council to psescribe the fee for affiliation of institutions recognised as training schools for nurses. Pursuant to section 3 of the Act, a Council had been constituted for the purpose of carrying out the provisions of the Act and that is not in dispute. From the aforesaid provisions of the Act, it follows that the Council established under section 3 of the Act has been enabled to make bye -laws to provide for recognition of institution competent to give training. Though it is not clear whether the Council in the exercise of its powers under section 23 of the Act, had made bye -laws to provide for recognition of institution competent to give such training, there cannot be and indeed there was no dispute that the Council has the power either to grant or refuse affiliation/recognition with or without condition. The stand of the petitioner has also been that the Council had recognised and granted affiliation to the institute run by him, though, that had been seriously disputed by the respondents No. 1 and 2 and this shall be adverted to in some detail later.

(3.) In the light of the aforesaid statutory provisions, it now becomes necessary to refer to the factual background in which the petitioner has prayed for relief No. 4, set out earlier. According to the petitioner, Gandhi Memorial Medical -Training Institute and Hospital, Pathankot, has been imparting training for basic courses in Nursing of three years duration comprised of two years theory and practice in general nursing and one year of community Health Nursing and Midwifery and that the institute has a hospital attached to it, besides other facilities like X -rays, E. C. C etc. Referring to the provisions of Indian Nursing Council Act, 1947, the petitioner claimed that the nursing institute run by him fulfilled al! the requirements and the regulations framed by the Indian Nursing Council and had also applied for the affiliation to the Registrar, H. P. Nursing Council, Shimla, in August, 1992 and also approached the Indian Nursing Council to permit the institute run by the petitioner to impart -training in General Nursing. The petitioner maintained that the Indian Nursing Council allowed -Gandhi Memorial Medical Training Institute to start the General Nursing Training as a special case, directing the institute to secure the approval of the State Nursing Council for affiliation. The petitioner also stated that the Himachal Pradesh State Nursing Council was directed to inspect the institute run by petitioner and submit - a report to the Indian Nursing Council with respect to the fulfilment of the requirements by the institute as laid down by the Indian Nursing Council. The communication dated 15 -9 -1992 stated to have been sent by one Mr. A. S. Verma, Assistant Secretary, to the petitioner at Pathankot was also attached to the writ petition as Annexure P -l. Subsequently according to the petitioner, pursuant to the letter Annexure P -l, the second respondent carried out an inspection between 20 -10 -1992 and 24 -10 -1992 and submitted a report to the third respondent as per Annexure P -2 dated 24 -10 -1992. The institute run by the petitioner, according to him, as per report, fulfilled all the requirements according to the syllabus of Indian Nursing Council. The report also, according to the petitioner, did not have any objection for according approval for the institute and give affiliation to it. The petitioner also stated that on 23 -9 -1992, a letter was addressed to the second respondent referring to the permission granted and requested that the affiliation forms be sent and also to intimate the amount of affiliation fee. The petitioner claimed that the institute also deposited the fee required for the affiliation purpose and that on 9 -12 -1992 a direction was given by the third respondent, Indian Nursing Council, to the second respondent to register the institute run by the petitioner with the State Council and accord affiliation/recognition. Pursuant to this, according to the petitioner, the second respondent, registered the institute with the Himachal Pradesh Nurses Registration Council as per letter dated 21 -12 -1992 (Annexure P -5) and directed the petitioner to deposit rupees one thousand in regard to which the petitioner stated that the amount of Rs. 1,000 had already been sent. To establish that the institute run by the petitioner had also been accorded recognition/affiliation, the petitioner also relied upon a letter dated 27 -3 -1993, sent by Mrs. R. D. Verma, to the Secretary to the third respondent to the effect that the institute run by the petitioner at Pathankot, is also one of the recognised Nursing Training Institutes. The petitioner further stated that students were admitted to the first year with permission from the Indian Nursing Council and when the institute run by the petitioner wrote a letter to send the examination -forms for the first year examination to enable 27 students to appear in the examination, and also intimated that the examination forms would be submitted with late fee, the second respondent refused to accede to that and even after the petitioner had met the concerned officials, the students were not permitted to take the examination and despite a letter addressed by the third respondent to permit the students to take the examination, that was not so done and even thereafter the petitioner made representation repeatedly, but they were of no avail. The petitioner thus claimed that he had no other alternative except to approach this Court praying for the reliefs set out earlier, as the institute had been duly recognised/affiliated and had also fulfilled all the requirements and standards prescribed. It is also necessary at this stage to notice that by an order dated 19 -10 -1993 a direction was issued that the respondents should conduct special annual examination with respect to 27 students. However, the first respondent herein preferred an appeal before the Supreme Court in Civil Appeal 681 of 94. By judgment dated 7 -2 -1994, the Supreme Court took the view that the order passed by the High Court dated 19 -10 -1993 was wholly unjustified and cannot be sustained and ultimately set aside that older. In the course of those proceedings, the third respondent filed a counter before the Supreme Court in which it was stated that the order of the High Court was not erroneous, in any manner, and that it is open to an institute functioning outside a State to secure recognition/affiliation by Council within that State. Some instances were also referred to. Referring to the inspection made by the Assistant Director -cum -Registrar, Mrs R. D. Verma (since retired) it was stated that she was competent to conduct the inspection and recommend affiliation/recognition and recognition was granted in accordance with section 10 of the Indian Nursing Council Act, 1947. Though in the course of the proceedings before the Supreme Court such a stand was taken by the third respondent, in the course of the present proceedings, the third respondent, though served, did not file any reply, either supporting or in opposition to the claim of the petitioner.