The Court dismissed petitions seeking mandatory affiliation for nursing courses despite State Nursing Council approval. It held that the University retains the power to reject late applications per its Statutes and that role of the Council does not eliminate the University's statutory procedural requirements.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR
FRIDAY, THE 1ST OCTOBER 2010 / 9TH ASWINA 1932
WP(C).No. 23505 of 2010(K)
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PETITIONER(S):
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THE PRINCIPAL, UPASANA COLLEGE OF NURSING, RAVI'S INSTITUTE OF MEDICAL SCIENCE PUTHUCHIRA, INDUSTRIAL ESTATE-PO, KOLLAM.
BY ADV. SRI.GEORGE POONTHOTTAM
RESPONDENT(S):
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KERALA UNIVERSITY FOR HEALTH & ALLIED SCIENCES, MULAMKUNNATHUKAVU, MEDICAL COLLEGE-PO, TRICHUR DISTRICT, REPRESENTED BY THE REGISTRAR.
R1 BY ADV. SRI.T.R.RAVI,SC,KERALA UTY H &A SCIENCE
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/09/2010, ALONG WITH WPC. NO.27196 OF 2010 & 27535 OF 2010 THE COURT ON 01/10/2010 DELIVERED THE FOLLOWING:
W.P.(C) NO.23505/2010
APPENDIX
PETITIONER'S EXHIBITS
P1:- COPY OF THE APPROVAL N0.02/JUN/2010-INC DTD. 19.6.2010. P2:- COPY OF THE ORDER NO.G.5392/03/NC/09 DTD. 12.7.2010. P3:- COPY OF THE REQUEST DTD. 17.7.2010. RESPONDENT'S EXHIBITS R1(a):- COPY OF THE LIST OF PROCESSED APPLICATION FOR THE 2010.
TRUE COPY
P.A. TO JUDGE
tss
T.R. Ramachandran Nair, J.
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W.P.(C) Nos. 23505/2010-K, 27196/2010-Y 27535/2010-N
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Dated this the 1st day of October, 2010.
JUDGMENT
In these writ petitions the petitioners are mainly seeking for issuance
of a writ of mandamus directing the respondent University to grant affiliation as sought by the respective petitioners. In W.P.(C) No.23505/2010, the affiliation is sought for the intake of 75 students for the B.Sc. Nursing Programme for the academic year 2010 – 2011. In W.P.(C) Nos.27196/2010 and 27535/2010 affiliation is sought for the post basic B.Sc. Nursing Programme for the academic year 2010-2011.
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Medical and allied subjects in the State. The necessary facts for the disposal of the writ petitions are the following:
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by the State Nursing Council, especially with regard to the availability of infrastructural and instructional facilities. It is therefore pointed out that the University cannot go behind these proceedings and grant of affiliation is automatic. It is thus pointed out that they cannot refuse to accept the application for affiliation and process the same for the present year, viz. 2010-2011. It is pointed out that in the light of the Ordinance, the former Universities are statutorily barred from considering the application for affiliation for medical and para medical courses.
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granted approval as per Ext.P10 which is followed by Ext.P11 permission granted by the State Nursing Council. Ext.P12 is the copy of the application submitted by the petitioner for affiliation and Ext.P13 is the reply given by the University stating that the application can be considered if the application previously submitted to the University of Kerala and its present status is forwarded to the University recommending to consider the same for the academic year 2010-2011. This was replied as per Ext.P14 by the petitioner, requesting to process the application and issue the same for the present academic year. Similar pleas have been raised in this writ petition also.
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facilities and other factors relevant. It is submitted that as far as the facilities for additional intake of B.Sc. Nursing Programme and sanctioning of Post Basic Nursing Programme are concerned, the satisfaction required with regard to the infrastructural facilities and other factors including laboratory, library, etc. is on the part of the Central Nursing Council and the State Nursing Council. In that view of the matter, the University cannot have any role in the matter of conducting a fresh inspection to satisfy about the infrastructural facilities and other relevant factors. Therefore, it is pointed out that grant of affiliation is automatic. Reliance is placed on the recent decision of a Full Bench of this Court in Velayudhan Memorial Trust v. State of Kerala (2010 (3) KLT 367(FB)), State of Maharashtra v. Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya and others {(2006) 9 SCC 1) and that of another Full Bench of this Court in Vikram Sarabhai E. Trust & B.Ed. College v. University of Calicut (2008 (2) KLT 1027 (FB)). It is pointed out that the Full Bench in Vikram Sarabhai Trust’s case (supra) was of the view that the University is bound to grant affiliation to a B.Ed. College, for which College has obtained recognition under Section 14(3)(a) from the Southern Regional Committee of National Council for Teacher Education and that the Full Bench was also of the view
wpc 23505, 27196 & 27535/2010 6
that the University cannot decline affiliation on the ground of lack of infrastructural facilities and that the application for the same was not submitted in time in terms of the provisions of the University Statutes. Inviting my attention to Velayudhan Memorial Trust's case (2010 (3) KLT 367 (FB)), it is submitted that therein this Court finally directed the University to give affiliation to each of the appellants in terms of the decision to be taken by the State Council for Nursing which indicates that the University has no other role but to grant affiliation. It is therefore pointed out that herein also the petitioners are entitled for issuance of a mandamus to the University to grant affiliation. It is contended that the stand of the University that the application for affiliation should have been submitted before 31st of August of the preceding academic year in which the courses are proposed to be started, cannot therefore be sustained, especially in the light of the fact that the approvals granted by the Central Nursing Council and the State Nursing Council are after the said date and that if the affiliation is not granted, the entire exercise will become futile. As a general proposition, it was contended that only where a University sanctions the particular course and grant affiliation, they can conduct inspection before granting it and where other bodies like the Nursing
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Council are involved in the matter of grant of approval, the University is bound to grant affiliation.
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and the stages at which they have processed the applications as at present. It is further pointed out that the University has a role while granting affiliation and therefore it is not an empty formality.
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Central Council has approved the intake, the same is the result of an examination of the infrastructural facilities and other factors. Reliance is also placed on the decision of this Court in National Medical Education Charitable Trust v. Kerala Nursing and Midwifery Council (2006 (2) KLT 612), State of T.N. and another v. Adhiyaman Educational & Research Institute and others {(1995) 4 SCC 104} and J aya Gokul Educational Trust v. Commissioner & Secretary to Govt., Higher Educational Department, Thiruvananthapuram, Kerala State and another {(2000) 5 SCC 231}.
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submitted that in the light of the principles stated in the decisions relied upon by him, the affiliation is automatic and the question will have to be considered, for granting the relief sought for.
12.In Adhiyaman Educational & Research Institute's case {(1995) 4 SCC 104}, the question that arose for consideration was in relation to the provisions of All India Council for Technical Education Act, 1987, T.N. Private Colleges Act and Rules, 1976 and Madras University Act. The question was examined in the light of Article 254 of the Constitution of India regarding repugnancy in the legislations made by Parliament and the State legislatures. It was held that “ if there is a conflict between the two legislations, unless the State legislation is saved by the provisions of the main part of clause (2) of Article 254, the State legislation being repugnant to the Central legislation, the same would be inoperative. The All India Council for Technical Education Act, 1987, the Central Act, is fairly within the scope of Entry 66 of List I and Entry 25 of List III. Further, these regulations along with other regulations made by the Council and the rules to be made by the Central Government under the Act are to be laid before
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Parliament. Hence, on the subjects covered by this statute, the State could not make a law under Entry II of List II prior to Forty-second Amendment or cannot make a law under Entry 25 of List III after the 42nd Amendment.”
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Bench in Vikram Sarabhai E. Trust's case (2008) 2 KLT 1027 (FB), in the light of the earlier decision of a Division Bench of this Court in Rural Education and Social Trust v. University of Calicut (2007 (2) KLT 609) which also followed the above Supreme Court decision.
“Going by the above statutory provisions, there cannot be any doubt that normally, once the Southern Regional Committee of the NCTE grants recognition to the petitioner's College, the examining body, that is, the 1st respondent University is bound to grant affiliation to the said College. The same cannot be denied, relying on the technical contention that the petitioner did not submit the application before the 30th October of the preceding year, in view of the decision of the Apex Court in State of Maharashtrav. Sant
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Dnyaneshwar Shikshan Shastra Mahavidyalaya {(2006) 9 SCC 1).” In para 12, it was also held that “it is trite law that when the central body grants recognition, based on the finding that the College has necessary infrastructural facilities, the University has no power or authority to decline affiliation, on the ground of lack of infrastructural facilities. In view of the decision in Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya's case (supra), affiliation cannot be declined on the ground that the application for the same was not submitted in time in terms of the provisions of the Calicut University First Statutes. Going by the decision of the Apex Court in Jaya Gokul Educational Trust v. Commissioner & Secretary to Government (2000 (2) KLT 267 (SC)), the University can insist that the requirements as per the Statutes, which are not in conflict with the provisions of the Central Act and the Regulations, should be complied with, for grant of affiliation. The decision in Rural Education and Social Trust (supra) only lays down this principle.”
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Nursing Council is not the one which is examining the question of infrastructural facilities and hence there is no inconsistency between the Central Act and the State Act.
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authority in view of the provisions contained in clause (a) of sub-s. (1) of S.14 read with clause (a) of sub-section (3) thereof........... Recognition or de-recognition of institutions, like that of the petitioner, imparting training in nursing, does not come under the purview of the Indian Nursing Council Act, 1947. But the power to recognise the qualifications, may confer incidental or ancillary power to prescribe the minimum facilities to be provided for, in the Nursing institutions. So, by virtue of the regulation making power contained in S.16(1) of the above said Act, the Central Council may prescribe the physical and clinical facilities that may be provided in an institution. The same is only for the purpose of deciding whether the training imparted in that institution, is upto the mark to enjoy the recognition for the qualification awarded pursuant to the training. Recognition or approval of institutions is essentially the function of the State Nursing Council.” Finally in paragraph 12 it was found that “the power/authority to approve/recognise an institution is essentially conferred on the State Council. Since the legislations occupy different fields, there is no question of any repugnancy.”
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Section 14 of the Central Act concerning withdrawal of recognition. Therefore, I cannot agree with the contentions raised by the learned counsel for the petitioners that it is for the Central Council to decide about the infrastructural facilities and the like matters apart from the State Council. It is only the State Council which is empowered to consider those aspects, as is clear from the above judgment. This legal position is further reiterated by the Full Bench in Velayudhan Memorail Trust's case (2010 (3) KLT 367 (FB)). Therein also, on the basis of the application of the petitioner therein, the Central Nursing Council sanctioned intake for the various courses. Later, the State council issued proceedings, wherein the intake approved was less than the intake purported to have been approved by the National Council. It is in the light of the above circumstances that the matter reached this Court. The petitioners sought for a direction to the respondents not to interfere with their right to admit students, as permitted by the Central Council into various courses. The various provisions of the Indian Nursing Council Act, 1947 were examined in detail by the Full Bench. The power of the State Council conferred under Section 26 of the Kerala Travancore Cochin Nurses and Midwives Act, 1953 and its scope was also examined. The Bench also considered the view taken in National
wpc 23505, 27196 & 27535/2010
17
Medical Education Charitable Trust's case (2006 (2) KLT 612) and the said view was upheld. It was held in para 22 thus:
“The authority of the National Council is limited to the establishment of standards of eduction which includes prescribing the appropriate syllabus, norms of training, prescription of appropriate infrastructure for conducting the courses etc. whereas a particular institution which proposes to impart education in Nursing etc. is to be recognised having regard to the norms and standards prescribed by the National Council and also having regard to the availability of the infrastructure etc. of a particular institution is a matter to be decided by the Council established under the Kerala Act X of 1953.”
Therefore, the legal position cannot be of any doubt in view of the authoritative pronouncement by the Full Bench in Velayudhan Memorial Trust's case (supra). The role of the Central Nursing Council is limited to approval of the qualification, syllabus, norms for training, etc. and the State Council may have to approve the infrastructural facilities.
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University Statutes is not correct.
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year 2010-2011 is concerned, the respondent University has considered all those applications which were transferred from the respective Universities and the said exercise was being undertaken without any discrimination. It is pointed out that Statutes have not been framed in terms of Ordinance 25 of 2009 and the University has therefore taken a decision to deal with all those applications transferred by the respective Universities which cannot be said to be arbitrary and therefore no interference is called for with the method adopted by the University in these writ petitions. It is pointed out that those Universities could not have accepted any applications submitted after the period prescribed, obviously. Shri Ravi, learned counsel for the University, therefore, vehemently contended that the petitioners are not entitled for any reliefs in these writ petitions.
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University Act and the Statutes which are not inconsistent with the AICTE Act or its regulations. The Full Bench in Vikram Sarabhai E. Trust's case (supra), after relying upon the decision of the Supreme Court in Jaya Gokul Educational Trust's case (2000 (2) KLT 267 SC), held that the University can insist that the requirements as per the Statutes, which are not in conflict with the provisions of the Central Act and the Regulations, should be complied with, for grant of affiliation.
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it can be seen that affiliation is a matter to be considered by the University on proper applications filed.
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procedure for permission and Section 52 provides formation of a Governing body for every affiliated college. Section 53 provides for continuation of affiliation. It obliges the affiliated colleges to apply for continuation of affiliation or recognition for the courses of study for which affiliation or recognition was granted ordinarily six months prior to the date of expiry of such affiliation or recognition. The University shall follow the procedure prescribed in the Statutes, so far as applicable, for grant of continuation of affiliation.
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Nursing course, which has already been transferred and is being processed. In the absence of any introduction of the First Statutes prescribing the conditions for affiliation, the only question before this Court is whether the procedure adopted by the University is unfair, arbitrary or discriminatory. In that sense, as pointed by the learned Standing Counsel for the University, they have adopted a uniform procedure and the same is being followed. The Ordinance was promulgated on 7.12.2009, well after the period prescribed for filing application for affiliation in the respective Universities was over. Therefore, as far as the submission of application for affiliation is concerned, they were governed by the procedure prescribed in the respective First Statutes, and the time limit prescribed in the Statute. In that view of the matter, if the petitioners had submitted applications for affiliation, automatically they would have been transferred to the respondent University. It is pointed out by the learned counsel for the University that the failure to submit the applications have compelled them to put forth a plea that the affiliation to be granted is automatic and the time limit prescribed in the Statutes cannot be applied to them. I am not satisfied that the procedure adopted by the respondent is unfair, arbitrary or illegal or discriminatory, or against the provisions of the Ordinance, especially
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Section 50 thereof. In the absence of promulgation of the First Statutes, the only question before this Court is whether the method adopted by the University and the procedure followed by them is arbitrary or discriminatory.
(T.R. Ramachandran Nair, Judge.)
kav/
3 issues framed by the court
Whether the University is automatically bound to grant affiliation immediately upon approval by the State Nursing Council without requiring an application within the statutory time limit prescribed by
Whether the Central Nursing Council's approval of intake and infrastructural facilities precludes the University from independently assessing the application or enforcing statutory deadlines.
Whether the procedure adopted by the University to reject late affiliation applications was arbitrary, arbitrary, discriminatory, or illegal under the Ordinance.
Colour shows how this judgement treated each authority
Velayudhan Memorial Trust v. State of KeralaRelied on¶42
Velayudhan Memorial Trust v. State of Kerala
State of Maharashtra v. Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya and othersRelied on¶42
State of Maharashtra v. Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya
Vikram Sarabhai E. Trust & B.Ed. College v. University of CalicutRelied on¶42
Vikram Sarabhai E. Trust & B.Ed. College v. University of Calicut
National Medical Education Charitable Trust v. Kerala Nursing and Midwifery CouncilRelied on¶54
National Medical Education Charitable Trust v. Kerala Nursing and Midwifery Council
State of T.N. and another v. Adhiyaman Educational & Research Institute and othersExplained¶59
Adhiyaman Educational & Research Institute and others
Jaya Gokul Educational Trust v. Commissioner & Secretary to Govt., Higher Educational Department, Thiruvananthapuram, Kerala State and anotherRelied on¶54
Jaya Gokul Educational Trust v. Commissioner & Secretary to Govt., Higher Educational Department
4 provisions across 3 enactments
THE PRINCIPAL, UPASANA COLLEGE OF NURSING, RAVI'S INSTITUTE OF MEDICAL SCIENCE
KERALA UNIVERSITY FOR HEALTH & ALLIED SCIENCES
T.R. Ramachandran Nair
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
