Chinai College of Nursing and Others Vs The Registrar, Rajiv Gandhi University of Health Sciences and Others

@JUDGMENTTAG-ORDER

S. Abdul Nazeer, J.@mdashSince common questions of law and fact are involved in all these writ petitions, they are clubbed together, heard and disposed of by this common order.

2. The 1st Petitioner in all these writ petitions are nursing colleges imparting education in P.C.B. Sc. nursing course. The other Petitioners in all the cases are the students admitted by the respective Petitioner-colleges for the study of first year P.C.B. Sc. nursing course for the academic year 2009-2010. For the sake of convenience, the 1st Petitioner in all these cases are referred to as ''colleges'' and other Petitioners are referred to as ''students'' in the course of this order. Initially, the colleges alone filed the writ petitions seeking a direction to the Registrar of the Rajiv Gandhi University of Health Science (for short ''the University'') to regularise the admission of students made by them to the 1st year P.C.B. Sc. nursing course for the academic year 2009-2010. They have produced the list of students admitted by them to the course in question for the said academic year. Subsequently, the students admitted by the colleges for the study of 1st year P.C.B. Sc. nursing course for the academic year 2009-2010 were impleaded as additional Petitioners.

3. The Petitioners contend that the colleges were approved by the Government of Karnataka, Karnataka Nursing Council and Indian Nursing Council. The University had granted its consent of affiliation for conducting the courses in question for the academic year 2009-2010. It is former contended that the colleges had submitted the list of admissions made by them to the course in question for the academic year 2009-2010 for approval to the University. However, the University has refused to approve the admissions on the ground that the list has been sent after the period prescribed in the calendar of events. The University has directed the colleges to discharge all the candidates admitted by them to the said course for the academic year 2009-2010.

4. Sri E.V. Gopalakrishnan Potty, learned Counsel appearing for the Petitioners submits that the University had granted its consent of affiliation to the colleges. The State Government has issued orders of affiliation u/s 45(5) of the Act for the academic year 2009-2010 in all the cases except in W.P. Nos. 24151 & 24393-24421/2010. In the said case, the affiliation order was granted for the academic year 2010-2011. Since the State Government has issued orders of affiliation, the University ought to have permitted the students admitted by the colleges to appear for the examination scheduled to commence from 9.8.2010 onwards. It is further contended that the University has to regularise the admission made by the colleges to the 1st year P.C.B. Sc. nursing course for the academic year 2009-2010.

5. On the other hand, Sri. N.K. Ramesh, Learned Counsel for the first Respondent-University submits that in all the cases, the colleges had made applications for grant of affiliation to start P.C.B. Sc. nursing course for the academic year 2010-2011. Therefore, the question of granting affiliation to the colleges to start the course for the academic year 2009-2010 does not arise. The colleges have not sent their statement of admissions within a period prescribed in the calendar of events dated. 20.7.2009. The colleges ought to have submitted the statement of admission with originals and xerox copies of the required documents on or before 20.12.2009. The colleges have not even obtained necessary permission from the competent authorities under the Indian Nursing Act, 1956 to start the P.C.B. Sc. nursing course. Therefore, the admission made by the colleges to the course in question for the academic year 2009-2010 cannot be approved. In so far as the 1st Petitioner in W.P. Nos. 24151/2010 and 24393-24421/2010 is concerned, the affiliation was granted by the State Government for the academic year 2010-2011. Therefore, the colleges could not have admitted any students for the said academic year. In the circumstances, the admission made by the colleges for the academic year 2009-2010 cannot be regularised. He has produced the records relating to affiliation of all the colleges.

6. Sri M. Keshava Reddy, Learned Additional Government Advocate appearing for the 2nd Respondent-State Government submits that the colleges had made applications for grant of affiliation u/s 45(2) of the Act for the academic year 2010-2011. The Registrar of the University submitted the applications with his recommendations for grant of affiliation to start the 1st year P.C.B. Sc. nursing course for the academic year 2010-2011 u/s 45(5) of the Act. However, the State Government has issued the affiliation order for the academic year 2009-2010. He has also produced the relevant files for the perusal of the Court.

7. Having regard to the contentions urged, the question for consideration is whether the admission of the students made by the colleges for the study of RC.B. Sc. nursing course for the academic year 2009-2010 is valid?

8. It is not in dispute that the colleges had made applications for grant of affiliation to start a fresh RC.B. Sc. nursing course for the academic year 2010-2011. The Registrar of University has sent his recommendation u/s 45(5) of the Act for grant of affiliation for the academic year 2010-2011. The calendar of events issued by the University for the 1st year B. Sc. nursing course/P.C.B. Sc. nursing course for the academic year 2010-2011 is as under:

Ref:No. UA/NURSE/CAL-13/2009-2010 Date:20.7.2009.

NOTIFICATION

Admission Calendar of events for 1st Year of B. Sc. Nursing/P.C.B. Sc. Nursing Course for the academic year 2009-2010 is hereby notified as follows:

The colleges have not submitted the statement of admission within the period prescribed in the calendar of events.

9. It is evident from the records produced by the learned AGA that the Under Secretary to the Department of Medical Education has recommended for grant of affiliation to the colleges to start the course in question for the academic year 2010-2011. However, the Minister concerned has ordered for grant of affiliation to the colleges for the academic year 2009-2010 without assigning any reasons. The said order of the Minister is totally illegal and unsustainable in law. Again, the Secretary to the Department of Medical Education has made a note in the file to the effect that the grant of affiliation retrospectively for the academic year 2009-2010 is improper. He has filed an affidavit before this Court dated 11.8.2010 in W. P. Nos. 24147/2010 and 24363-24392/2010 stating that the Government Order granting affiliation to the colleges suffers from irregularities. He has further stated that the order of affiliation will be rectified after duly notifying the colleges and the concerned authorities. Paragraphs 2 to 4 of the affidavit are as under:

2. It is submitted that in obedience to the direction of this Hon''ble Court whether the State Government has powers to give permission to start a nursing college in P.C.B. Sc. course, with retrospective effect, it has been thoroughly examined by the Government and its authorities and after going through the relevant provisions of the Acts and Rules it is found that the permission cannot be granted with retrospective date.

3. It is submitted that in this view of the matter, the orders passed by the Government in respect of the colleges covered under the above writ petitions suffer from irregularities.

4. It is further submitted that the irregularities found in the orders will be rectified after duly notifying the colleges and the concerned authorities. Hence this affidavit.

10. Chapter 7 of the Rajiv Gandhi University of Health Sciences Act, 1994 provides for affiliation of colleges and recognition of institutions. Section 45(1) of the Act states that the colleges within the University area may on satisfying the conditions specified in the Section, be affiliated to the University as affiliated colleges by the University on the recommendations made by the State Government. Section 45(2) of the Act states that a college applying for affiliation to the University shall send an application to the Registrar within the time limit fixed by ordinances and shall satisfy the Syndicate and the Academic Council the conditions mentioned in Sub-sections (a) to (i).

Section 45(5) of the Act provides for grant of affiliation by the State Government, which is as under:

Section 45(5): The Registrar shall within such time as the Government may from time to time specify submit application and all proceedings, if any of the Academic Council and of the Syndicate relating thereto to the Government which, after such inquiry as may appear to it to be necessary, shall make their recommendations for the grant of the application or any part thereof or refuse the application or any part thereof and the University shall issue orders accordingly.

11. A plain reading of the above statutory provisions clearly indicate that when the applications filed by the colleges for grant of affiliation were for the academic year 2010-2011, the question of granting affiliation retrospectively for the academic year 2009-2010 does not arise. Therefore, the Secretary of the Department of Medical Education is justified in stating in his affidavit that orders granting affiliation to the colleges suffer from irregularities. He has to rectify those orders as undertaken by him in the affidavit in accordance with law.

12. It is no doubt true that the University had issued endorsements for consent of affiliation to all the colleges to enable them to obtain necessary permission from Karnataka Nursing Council and Indian Nursing Council. However, in the endorsements, the University has clarified that based on the consent affiliation, the colleges should not make any admission and that if any such admissions are made, the same will not be approved by the University. The relevant portion of the endorsement is as under:

On the basis of the Government of Karnataka permission to start PCB. Sc. Nursing course with an intake of 50 (fifty) seats from the year 2009-2010 vide order No. HFW.148. MPS.2010, Bangalore dated: 19.4.2010, Rajiv Gandhi University of Health Sciences, Karnataka, Bangalore, has agreed in Principle, to affiliate the Nursing college for the academic year 2009-10, PCB. Sc. Nursing with an admission capacity against courses mentioned below at Chinai College of Nursing, Bangalore, subject to the grant of permission from the KNC & INC.

Based on the consent of affiliation, the college should not make any admissions to the below UG/PG courses. If any such admissions are made the same will not be approved by the University.

(underlining is by me)

13. Based on the consent of affiliation, the co lieges could not have made any admission. In none of the cases, the colleges have obtained permission from the Karnataka Nursing Council or Indian Nursing Council in accordance with law. Thus, the admission made by the colleges to the course in question for the academic year 2009-2010 is unauthorised and illegal. In Medical Council of India v. Rajiv Gandhi University of Health Sciences and Ors. AIR 2004 SC 2603- the Apex Court was considering the validity of the interim order of this Court whereby the institution concerned was allowed to admit the students to MBBS course before the grant of renewal of permission from the Central Government. It is held as under:

The High Court ought not to grant interim orders in any of the cases where the council has not granted permission in terms of Section 10A of the Medical Council Act, 1956. If the interim orders are granted to those institutions, which have been established without fulfilling the prescribed conditions to admit students, it will lead to serious jeopardy to the students admitted in these institutions.

14. In Minor Sunil Oraon Tr. Guardian and Others Vs. C.B.S.E. and Others, - after considering the earlier judgments, the Apex Court has held as under:

Time and again, therefore, this Court had deprecated the practice of educational institution admitting the students without requisite recognition or affiliation. In such cases the usual plea is the career of innocent children who have fallen in the hands of the mischievous designated school authorities. As the factual scenario delineated against goes to show the school has shown scant regards to the requirements for affiliation and as rightly highlighted by Learned Counsel for the CBSE, the infraction was of very serious nature. Though the ultimate victims are innocent students that cannot be a ground for granting relief to the Appellant. Even after filing the undertakings the school non-challantly continued the violations.

Therefore, the admission made by the colleges to the 1st year P.C.B. Sc. nursing course for the academic year 2009-2010 is invalid. The admission of the students to the course for the academic year 2009-2010 cannot be approved and they cannot be allowed to take the examination as sought for in the writ petitions.

15. Now, the question is what should happen to the students who have been admitted by the colleges to the aforesaid course for the academic year 2009-2010? The colleges have committed a grave error in admitting the innocent students to the course. The students should not be left at the mercy of the colleges. Their future cannot be put in jeopardy. It is settled that Article 226 of the Constitution grants extraordinary remedy, which is essentially discretionary. It is perfectly open for the Court to pass such order as public interest dictates and equity projects. Article 226 of the Constitution of India being couched in comprehensive phraseology, exfacie it confers wide powers on the High Court to reach injustice wherever it is found. In appropriate cases, the High Court can do complete justice by moulding the relief.

16. In B.C. Chaturvedi Vs. Union of India and others, , the Hon''ble Supreme Court has opined that mere fact that there is no provision parallel to Article 142 relating to the High Courts, can be no ground to think that they have not to do complete justice and if moulding of relief would do complete justice between the parties, the same cannot be ordered. Power to do complete justice inheres in every Court not to speak of a Court of plenary jurisdiction like a High Court. In Roshan Deen Vs. Preeti Lal, , the Apex Court has held that the power conferred on the High Court under Articles 226 and 227 of the Constitution of India is to advance justice and not thwart it. The very purpose of such constitutional powers being conferred on the High Court is that no man should be subjected to injustice by violating the law.

17. As noticed above, the students admitted by the colleges to the P.C.B. Sc. nursing course for the academic year 2009-2010 is without authority of law. This is a fit case where the relief has to be moulded in order to do complete justice. The interest of justice will be met if the colleges are directed to re-admit the students in their respective colleges for the academic year 2010-2011 to the 1st year P.C.B. Sc. nursing course. The colleges should not charge any fee from the students for the entire academic year. The fee paid by them for the academic year 2009-2010 has to be adjusted to the current academic year. This will minimise the hardship caused to the students by illegally admitting them to the course for the academic year 2010-2011. It is hereby clarified that the colleges are permitted to admit the students to the academic year 2010-2011 only if they obtain the permission from the competent authorities in accordance with law. The students are also at liberty to claim appropriate damages from their respective colleges for the loss of an academic year. I am also of the view that the Registrar of the University should ensure that the colleges admit the Petitioner-students to the course in question for the academic year 2010-2011 without payment of any fee since the colleges have collected the fee by illegally admitting them for the academic year 2009-2010. He shall also depute one of the Deputy Registrars of the University once in two months to the colleges to make an inquiry with the Petitioner-students as to whether they are being harassed by the colleges in any manner.

18. In the light of the above discussions, I pass the following:

ORDER

(i) Writ petitions fail and they are accordingly rejected.

(ii) However, I direct the colleges to re-admit the eligible Petitioner-students to the first year P.C.B. Sc. course in nursing for the academic year 2010-2011, who were admitted for the study of the said course for the academic year 2009-2010, without receiving any fees provided the colleges have obtained necessary permission from the competent authorities to start the said course in accordance with law.

(iii) The Registrar of Rajiv Gandhi University of Health Sciences is directed to ensure that the Petitioner-students are re-admitted to the course in question in their respective colleges for the academic year 2010-2011 subject to condition No. (ii).

(iv) The Registrar of Rajiv Gandhi University of Health Sciences is further directed to depute a Deputy Registrar of the University to make enquiry with the students once in two months till the completion of the academic year 2010-2011 for the purpose mentioned in paragraph 17 of this order.

(v) The colleges are restrained from admitting any fresh students for the study of 1st year RC.B. Sc. nursing course for the academic year 2010-2011 before admission of the Petitioner-students subject to condition No. (ii). For the remaining seats, they are permitted to admit fresh students to the said course in accordance with law.

(vi) Liberty is reserved to the Petitioner-students to claim damages from their respective colleges for the loss of an academic year in accordance with law. No costs.