Dismissed

Mes College of Nursing v. State of Kerala

Kerala HC21 Mar 2014WP(C)/31447/2013

Case brief

AI extract

What is this about?

A nursing college challenged a government order requiring revalidation of its No Objection Certificate (NOC) due to delay in commencing courses. The High Court held the petitioner failed to apply for revalidation within the prescribed time and dismissed the petition, refusing to mould relief under Article 226.

What did the court decide?

Petitioner had asked quashing of order and direction for revalidation; petition dismissed with no order as to costs.

Mes College of Nursing Vs State of Kerala — Pension and Retirement Benefits | Kerala HC (2014)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR FRIDAY, THE 21ST DAY OF MARCH 2014/30TH PHALGUNA, 1935 WP(C).No. 31447 of 2013 (E) ----------------------------

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PETITIONER(S): --------------------------

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MES COLLEGE OF NURSING MES MEDICAL COLLEGE CAMPUS, PERINTHALMANNA PALACHUVADU P.O., MALAPPURAM DISTRICT REP. BY ITS DIRECTOR, DR.P.A. FAZAL GHAFOOR. BY ADVS.SRI.BABU KARUKAPADATH SMT.M.A.VAHEEDA BABU SRI.K.A.NOUSHAD SRI.KANDAMPULLY RAHUL SRI.MITHUN BABY JOHN SRI.J.RAMKUMAR SRI.P.U.VINOD KUMAR

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RESPONDENT(S):

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STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT DEPARTMENT OF HEALTH AND FAMILY WELFARE GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM - 695 001.

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INDIAN NURSING COUNCIL, COMBINED COUNCIL BUILDING, KOTLA ROAD NEW DELHI - 110 002, REPRESENTED BY ITS SECRETARY.

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KERALA NURSES AND MIDWIVES COUNCIL, RED CROSS ROAD, THIRUVANANTHAPURAM -35 REPRESENTED BY ITS REGISTRAR R3 BY ADV. SRI.N.RAGHURAJ, SC R2 BY ADV. SRI.P.PARAMESWARAN NAIR,ASG OF INDIA R1 BY GOVERNMENT PLEADER SHRI ROSHEN D.ALEXANDER

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21-03-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 31447 of 2013 (E)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXHIBIT-P1-TRUE COPY OF THE LETTER DATED 22/10/2011 BY THE GOVERNMENT TO THE PRINICIPAL, MEDICAL COLLEGE, KOZHIKODE FOR CONDUCTING INSPECTION IN THE PETITIONER'S INSTITUTION FOR M.SC NURSING.

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EXHIBIT-P2-TRUE COPY OF THE LETTER DATED 22/10/2011 BY THE GOVERNMENT TO THE PRINICIPAL, MEDICAL COLLEGE, KOZHIKODE FOR CONDUCTING INSPECTION IN THE PETITIONER'S INSTITUTION FOR BASIC M.SC NURSING.

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EXHIBIT-P3-TRUE COPY OF THE LETTER DATED 04/05/2012, ISSUED BY THE INDIAN NURSING COUNCIL TO THE PETITIONER IN RESPECT OF M.SC NURSING.

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EXHIBIT-P4-TRUE COPY OF THE LETTER DATED 04/05/2012, ISSUED BY THE INDIAN NURSING COUNCIL TO THE PETITIONER IN RESPECT OF POST BASIC M.SC NURSING.

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EXHIBIT-P5-TRUE COPY OF THE GOVERNMENT ORDER DATED 04/12/2012, GRANTING NOC TO COMMENCE M.SC NURSING.

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EXHIBIT-P6-TRUE COPY OF THE GOVERNMENT ORDER DATED 04/12/2012, GRANTING NOC TO COMMENCE POST BASIC B.SC NURSING.

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EXHIBIT-P7-TRUE COPY OF THE APPLICATION DATED 12/12/2012 SUBMITTED BY THE PETITIONER TO THE KERALA UNIVERSITY OF HEALTH SCIENCES.

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EXHIBIT-P8-TRUE COPY OF THE LETTER OF CONSENT DATED 17/12/2012 ISSUED BY THE KERALA NURSE AND MIDVIES COUNCIL.

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EXHIBIT-P9-TRUE COPY OF THE LETTER OF CONSENT DATED 05/06/2013 ISSUED BY THE KERALA UNIVERSITY OF HEALTH SCIENCES FOR STARTING M.SC NURSING AND POST BASIC B.SC NURSING.

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EXHIBIT-P10-TRUE COPY OF THE LETTERS DATED 05/06/2013, SUBMITTED BY THE PETITIONER TO THE INDIAN NURSING COUNCIL.

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EXHIBIT-P11-TRUE COPY OF THE LETTERS DATED 05/06/2013 SUBMITTED BY THE PETITIONER TO THE INDIAN NURSING COUNCIL.

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EXHIBIT-P12-TRUE COPY OF THE LETTER OF PERMISSION DATED 19/10/2013 ISSUED TO THE PETITIONER FOR STRTING M.SC NURSING COURSE.

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EXHIBIT-P13-TRUE COPY OF THE LETTER OF PERMISSION DATED 19/10/2013 ISSUED TO THE PETITIONER FOR STARTING POST BASIC B.SC NURSING COURSE.

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EXHIBIT-P14-TRUE COPY OF THE LETTER DATED 22/10/2013 ISSUED BY THE INDIAN NURSING COUNCIL.

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EXHIBIT-P15-TRUE COPY OF THE LETTER DATED 29/10/2013 SUBMITTED BY THE PETITIONER TO THE KERALA NURSING AND MIDWIVES COUNCIL.

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EXHIBIT-P16-TRUE COPY OF THE LETTER DATED 11/11/2013, ISSUED BY THE KERALA NURSES AND MIDWIVES COUNCIL.

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EXHIBIT-P17-TRUE COPY OF THE G.O(P) 64/2012/H&FWD DATED 17/02/2012 RFERRED TO IN EXHIBIT-P16.

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EXHIBIT-P18-TRUE COPY OF THE NORMS DATED 26/08/2011, ISSUED BY THE INDIAN NURSING COUNCIL FOR OPENING SCHOOLS/COLLEGES OF NURSING.

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EXHIBIT-P19-TRUE COPY OF THE REPRESENTATION DATED 20/11/2013 SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT.

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EXHIBIT-P20-TRUE COPY OF THE NOTIFICATION DATED 22/11/2013 ISSUED BY THE INDIAN NURSING OCUNCIL, EXTENDING THE PERIOD FOR COMPLETING THE ADMISSION PROCESS.

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EXHIBIT-P21-TRUE COPY OF THE NOTIFICATION DATED 9/1/14 ISSUED BY THE INDIAN NURSING COUNCIL, EXTENDING THE PERIOD OF SUBMITTING APPLICATION FOR THE YEAR 2014-15.

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RESPONDENTS' EXHIBITS:-

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EXHIBIT R1(a): TRUE COPY OF THE PUBLIC NOTICE ISSUED BY THE 2ND RESPONDENT WHICH WAS DOWN LOADED FROM www.indiannursingcouncil.co.in.

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EXHIBIT R1(b): TRUE COPY OF THE NOTIFICATION ISSUED BY THE SECRETARY, INDIAN NURSING COUNCIL ISSUING CALENDAR EVENTS FOR THE YEAR 2014-15.

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/true copy/

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P.S. TO JUDGE

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K. M. JOSEPH & A. K. JAYASANKARAN NAMBIAR, JJ.

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=.===================~=.=

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W. P. © No. 31447 of 2013

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=.===================~=.= Dated this the 21^st day of March, 2014

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JUDGMENT

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K. M. JOSEPH, J.

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Petitioner has approached this Court with the following reliefs:

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i) Issue a writ of certiorari or any other appropriate writ, order or direction, quashing Ext.P16 and clause V and other relevant provisions of Ext.P17 G.O. to the effect it insists for revalidation of NOC and fixing the time schedule and the process for revalidation of NOC as that one for issuance of NOC;

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ii) Issue a writ of mandamus or other appropriate writ, order or direction commanding the 1^st respondent to revalidate

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WPC 31447/13 2

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Ext.P5 & P6 NOCs without any further procedure and further direct the 3^rd respondent to give recognition to the petitioner for commencing M.Sc. Nursing and Post Basic B. Sc. Nursing Course in its Institution immediately

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and

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iii) Pass such other order or direction as this Court may deem fit and proper in the interest of justice.

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Briefly put the case of the petitioner is as follows:

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Petitioner is a Self Financing Nursing College established and administered by Muslim Educational Society, Kozhikode. The petitioner started first batch of B. Sc. Nursing Course from the year 2004 with an intake of 50 students. The petitioner decided to increase the infrastructural facilities in its college for starting additional courses like M. Sc. Nursing and Post Basic Nursing. The petitioner submitted an application dated 19-10-2011 for getting NOC to start M. Sc. Nursing and Post Basic Nursing Course. By Exts.P1 and P2 the Government addressed the

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Principal, Medical College, Kozhikode for conducting inspection in this regard. Exts.P3 and P4 propose to be letters issued by the Indian Nursing Council in respect of the above course. By Exts.P5 and P6 dated 4-12-2012 Government granted NOC valid up to 2013-'14. The petitioner thereafter submitted Ext.P7 application dated 12/12/2012 to the Kerala University of Health Sciences for affiliation. By Ext.P8 the Kerala Nurses and Midwives Council granted certificate of consent. The Kerala University of Health Sciences granted Ext.P9 letter of consent. On 5-6-2013 the petitioner made applications vide Exts.P10 and P11 for permission to start the course. By Exts.P12 and P13 Indian Nursing Council granted permission for the course in question for the year 20142015. By Ext.P14 the Indian Nursing Council corrected its order as 2013-2014. The petitioner thereafter applied by Ext.P15 to the Registrar, Kerala Nurses and Midwives Council for application form. By Ext.P16 dated 11/11/2013 the Kerala Nurses and Midwives Council, referring the

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Government Order dated 17/2/2012, directed the petitioner to submit revalidated NOC for 2014-2015 in accordance with the Government Order. It is also noted that in the said Government Order the Government clarified that in case the petitioner fails to start the course for the academic year for which NOC was granted, the petitioner had to get the NOC revalidated for the year in which they wish to start the course and if the petitioner had failed to start the course for the academic year 2013-2014 for which NOC was granted the NOC has to be revised for the academic year 20142015. Ext.P17 is the Government Order which is referred to in Ext.P16. Accordingly, the petitioner approached this Court challenging Exts.P16 and P17.

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We have heard the learned counsel for the petitioner and the learned Senior Government Pleader.

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As we have already noted, the petitioner originally obtained NOC for the year 2013-2014. It is not in dispute that the petitioner could not commence the course in question during the year 2013-2014. Then by Ext.P16 the

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petitioner was directed to revise the NOC for the academic year 2014-2015. Therefore, we cannot find that Ext.P16 is illegal or vitiated by law. Ext.P17 is a Government Order in terms of which petitioner applied for consent and the consent was duly granted with certain conditions, including the condition that NOC is valid only or the year 2013-2014. Clause V of Ext.P17, inter alia, reads as follows:

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“V. Revalidation of NOC

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The time schedule for submitting application for revalidation and processing will be the same as prescribed in original application. The fee prescribed for revalidation of the course will be 50% of the application fee. In case, the applicant fails to start the course for academic year for which NOC is granted, they have to get the NOC revalidated for the year in which they wish to start the course. For the purpose of revalidation of NOC, the applicant should submit application with the prescribed fee for revalidation, in the account maintained by Health & Family Welfare © Department...”

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Therefore we have to necessarily find out what is

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WPC 31447/13

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the time schedule for submitting the original application. That is provided in clause 1(iii) of Ext.P17, which reads as follows:

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“The application shall be submitted from 1^st August to 30^th September for starting a particular nursing course in the next academic year”.

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The petitioner had obtained consent for starting the course in question in 2013-2014. It was not able to commence the course, as already noted, in terms of the Government Order. Therefore, for starting the course for the next year i.e., 2014-2015 the petitioner had to apply for revalidation in terms of clause V read with clause 1(iii). It is clear that the petitioner had to apply for revalidation before 30^th September, 2013. Admittedly, the petitioner has not applied for revalidation before 30^th September, 2013.

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The contention of the petitioner, however, is that the delay was not due to the fault of the petitioner. In the very first place it is submitted that the petitioner had applied for NOC much earlier. The matter was taken up

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and no objection was granted as per Ext.P6 dated 4/12/2012. It is pointed out that there is delay at each stage by various authorities and therefore it is unjust and arbitrary to now expect the petitioner to make the application in terms of Ext.P17.

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It is submitted that the result of accepting the Government stand is that the college will be unable to commence its course which would benefit the petitioner, large number of students and society in general, as there is a dearth of trained teachers. Reference is made to Ext.P20, which is a communication issued by the Indian Nursing Council dated 22-11-2013. By the said communication Indian Nursing Council has extended the cut-off date from 31^st October, 2013 to 15^th December, 2013 for completing the process of admission to ANM/GNM/B.Sc.(N)/M. Sc.(N) programmes as one time measure. It is pointed out therefore that they had time till 15-12-2013 for completing the admission for 2013-2014. If only the matter had not been delayed, the petitioner could very well have

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commenced the course in question for the year 2013-2014 by 31-12-2013 itself and there would have been no need for applying for revalidation. It is further pointed out, with reference to Ext.P21, that the Indian Nursing Council had declared that the application form and affidavit for the year 2014-2015 have to be submitted on or before 30^th April, 2014. The learned counsel points out that in terms of Ext.P17 the last date for submitting application for LOP is shown as 30^th April and last date for issuance of LOP is shown as 31^st May. Therefore, it is not possible to follow Ext.P21 and at the same time also to comply with Ext.P17. He also placed reliance on the principle of desuetude. He would submit that Ext.P17 order has not been followed as such and therefore fell into disuse. Therefore, on that ground also relief can be granted to the petitioner. He would also submit that the facts of this case presented a fit scenario for the writ court to grant relief on an equitable ground and taking into account the entirety of hardship caused to the petitioner and benefits to the student

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community. It is also submitted that inspections were conducted by the authority concerned namely, Indian Nursing Council, and there would be no benefit gained by conducting another inspection in connection with the revalidation. It was also pointed out that the time limit which has been prescribed has not been followed by the authorities.

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Learned Government Pleader, on the other hand, would contend that the challenge against the Government Order cannot be sustained. The writ petitioner applied in terms of Ext.P17 and was given NOC and therefore in such circumstances no relief can be granted. The petitioner would also have acted earlier, when there was delay on the part of the authorities.

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We see no ground at all to find Ext.P16 in any way illegal. The Kerala Nurses and Midwives Council only purported to follow Ext.P17 Government Order. We also see no merit in the contention that by Ext.P20 time was extended by the Indian Nursing Council. When Ext.P16

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order was passed, Ext.P20 order had not been issued. Ext.P20 is dated 22/11/2013 and Ext.P16 is dated 11/11/2013. Therefore, we cannot find fault with the council as the time which had been fixed by the Nursing Council for completing the process for admission had expired on 31/10/2013. Therefore, classes could not have commenced after 31/10/2013. In this connection, it is also noteworthy that request was made before the Kerala Nurses and Midwives Council on 29/10/2013. It is too much to expect that the Nursing Council should have passed an order within two days in the month of October when the last date, as already noted, originally was 31/10/2013. We notice that there is no delay on the part of the Council for taking the decision on the application.

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Speaking of Ext.P17 order, as we have already noted, the challenge is only against a part of the Government Order that prescribes the process of revalidation and in particular the application of time limit. In other words, the contention is that time schedule should

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not have been prescribed for revalidation.

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In this case we must notice that in terms of the Government Order-Ext.P17, the applicant has to first obtain an NOC. Thereafter permissions from various authorities have to be obtained. They include the Indian Nursing Council and the Kerala Nurses and Midwives Council. Thereafter application for LOP has to be given before 30^th April. Order must be issued by the Government before 31^st May by the same year. It is on the basis of LOP alone that the petitioner can start the course. For the year 2013-2014 the petitioner had to start the course on or before 31/10/2013. We notice that no doubt there may have been delay on the part of the Indian Nursing Council in issuing Exts.P12 and 13. As we see, consent was issued by the University on 5-6-2013. But Exts.P12 and P13 are issued only in October,2013. At this juncture we must pose a question as to what possibly prevented the petitioner from approaching this Court and seeking directions? If it did not commence the course for the year in question, it could have

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made an application for revalidation before 30^th September, 2013. Therefore, the delay alleged against the Indian Nursing Council cannot be sustained.

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Therefore, we think that nothing prevented the petitioner from acting in terms of Ext.P17 as it was clear that the petitioner could not start the course by 30^th September, 2013. In this regard it is necessary to bear-inmind that 31^st of October, 2013 was the last date for completing the admission. In the case of the petitioner since it had obtained Ext.P12 and P13 only in October, 2013, it is crystal clear that even before 30^th September, 2013 the petitioner ought to have found that it could not commence the course during 2013-2014 and the petitioner should have moved for revalidating the NOC in terms of Government Order within the time prescribed.

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It is further noteworthy that in terms of Ext.P17 the NOC should have been obtained before 31^st May, 2013 for the petitioner to commence the course for 2013-2014. It is clear that the petitioner could not have commenced the

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course 2013-2014, as it had not obtained NOC for that year. It may be true that the application of the petitioner for the NOC in terms of Ext.P17 was decided only in December, 2012. If the petitioner wanted steps should have been taken for commencing the course in terms of the NOC granted by the Government. It is true that the learned counsel for the petitioner would point out that revalidation process involves expenditure for the petitioner, as the applications have to be accompanied by payment of fees to the authorities. The answer of the learned Government Pleader is that the inspections conducted for the earlier year will not enure to the petitioner, as the matters which are relevant must be ascertained for the year in question. In such circumstances the process of revalidation itself cannot be considered unsustainable. The revalidation process itself is not called in question before us. What is called in question is the application of time limit for original applications to the process of revalidation also. The contention of the learned Government Pleader in this regard is that having regard to

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the need for getting LOP i.e., provided in Ext.P17 order, unless there is sufficient gap from the date of submission of the application for revalidation, there would be no time available for procedures to be completed. We cannot find fault with the Government in prescribing such a time limit. In fact in this case as already noticed nothing prevented the petitioner from applying for revalidation within the time that was provided. As already noticed, the need for revalidation is not questioned before us. Time schedule prescribed cannot be arbitrary or unreasonable. We cannot possibly strike it down.

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We find that contention of desuetude is totally untenable. In certain cases a law is not a valid law. Because of consistent disuse for a very considerable period of time and also accompanied by contrary practice which renders the law itself redundant. In the first place there is no law as such. But even proceeding on the basis that we should, in a given case, apply the doctrine of desuetude even to an executive order, in this case we note that

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Ext.P17 order is issued in the year 2012. By no stretch of imagination could it be said that the said order has fallen into disuse for a considerable period of time. It is at a nascent stage. We may also not be justified in allowing the petitioner to draw support from Ext.P21. Ext.P21 no doubt is issued by the Indian Nursing Council providing application form and affidavit for 2014-2015 which have to be submitted on or before 30^th April, 2014. No doubt first application for LOP is to be given before 30^th of April and LOP is to be issued in an appropriate case on or before 31^st May. Learned counsel for the petitioner points out that Indian Nursing Council is the ultimate authority.

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The need for NOC and LOP from the State Government is not called in question before us, as Ext.P17 is not challenged before us. The authority of the Government in other words in this regard is not questioned. We cannot sit in judgment over Ext.P17 in this regard. Therefore, alleged inconsistency of Exts.P17 and P21 does not appeal to us. The date indicated in Ext.P21 also strikes

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us as only an outer limit for making the application and affidavit.

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Lastly, we must also deal with the contention that there is a power of writ court to mould relief taking into account larger considerations of justice. We must notice that the High Court, though possesses powers, which could be described in one sense as unlimited under Article 226 of the Constitution, it is not really empowered like the Supreme Court under Article 142 of the Constitution. The Government have issued Ext.P17 to be an order of general application. We have repelled the petitioner's contention against the Government order as also Ext.P16. Therefore, the Government's action in this regard has been found to be legal. Once we come to that conclusion, if we are to grant relief to the petitioner on an understanding of what is just, in our view, it would amount to arrogating to ourselves the power to grant relief. We would think that we should not be persuaded to allow the petitioner to appeal to our sense of justice.

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