Allowed

Dr.Janet.J v. the Kerala Nurses and Midwives Council

Kerala HC18 Oct 2019WP(C)/20579/2019

Case brief

AI extract

What is this about?

The Kerala High Court allowed a writ petition filed by a nurse seeking to have her Post Basic B.Sc., M.Sc., and Ph.D. nursing degrees recorded in the Register maintained by the Kerala Nurses and Midwives Council. The Council had refused, claiming the petitioner pursued these courses after joining State service without leave. The Court held that under the Act, if a person holds a qualification conf

What did the court decide?

Respondents 1 and 2 are directed to include the petitioner's Post Basic B.Sc., M.Sc., and Ph.D. nursing degrees in the Register maintained under the Act.

Dr.Janet.J Vs the Kerala Nurses and Midwives… — Pension and Retirement Benefits | Kerala HC (2019)

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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 P.B.SURESH KUMAR

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FRIDAY, THE 18TH DAY OF OCTOBER 2019 / 26TH ASWINA, 1941

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WP(C).No.20579 OF 2019(V)

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PETITIONER:

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DR.JANET.J AGED 45 YEARS 'DAIWIK', PATHAIKKARA P.O, PERINTHALMANNA, MALAPPURAM DISTRICT, KERALA-679322.

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BY ADVS. SRI.P.K.MANOJKUMAR SMT.SMITHA S.PILLAI SMT.ALICE THOMAS SMT.M.C.SINY

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RESPONDENTS:

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1 THE KERALA NURSES AND MIDWIVES COUNCIL REPRESENTED BY REGISTRAR RED CROSS ROAD, THIRUVANANTHAPURAM-695035.

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2 THE REGISTRAR, KERALA NURSES AND MIDWIVES COUNCIL, RED CROSS ROAD, THIRUVANANTHAPURAM-695035,

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3 THE INDIAN NURSING COUNCIL, REPRESENTED BY ITS SECRETARY, 8TH FLOOR, NBCC CENTRE, PLOT NO.2, COMMUNITY CENTRE, OKHLA PHASE-I, NEW DELHI-110020.

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R1-2 BY SRI.N.RAGHURAJ, SC, TCMC & KNMC

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18-102019, THE COURT ON 18-10-2019 DELIVERED THE FOLLOWING:

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WP(C).No.20579 OF 2019(V)

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W.P.(C) No.20579 of 2019

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J U D G M E N T

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Ext.P18 communication, in terms of which the second respondent, the Registrar of the Kerala Nurses and Midwives Council (the Council) has informed the petitioner the decision of the Council to decline the request made by the petitioner for registration of the additional qualifications secured by her in the Register maintained under the Nurses and Midwives Act, 1953 (the Act), is under challenge in the writ petition.

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2 . The relevant facts are the following: The petitioner obtained Diploma in General Nursing and Midwifery from the Government School of Nursing, Palghat, during February 1993. Ext.P1 is the diploma certificate of the petitioner. On the strength of the said Diploma, the petitioner has applied for and obtained registration under the Act to practice as a nurse and midwife. Ext.P2 is the certificate of registration of the petitioner under the Act. Later, the petitioner joined for the Post Basic B.Sc. Nursing Course at M.V. Shetty College of Nursing, Manglore, affiliated to the Rajiv Gandhi University of Health

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Sciences, Karnataka and obtained the Post Basic B.Sc. Nursing Degree from the said University. Ext.P3 is the degree certificate of the petitioner. On the strength of Exts.P1 and P3 certificates, the petitioner has obtained registration to practice as a nurse and midwife under the Karnataka Nurses, Midwives and Health Visitors Act, 1961 also. Exts.P4 and P5 certificates evidence the said fact. Later, the petitioner joined for the Masters Degree in Nursing at Sri Ramakrishna Institute of Paramedical Sciences, Coimbatore, affiliated to the Tamil Nadu Dr.M.G.R.Medical University, Chennai and obtained Masters Degree in Nursing in the branch of Community Health Nursing. Ext.P6 is the Masters Degree certificate of the petitioner. Earlier, the petitioner got herself registered to practice as a nurse and midwife on the strength of Exts.P1 and P3 certificates under the Tamil Nadu Nurses and Midwives Act, 1926 also and after obtaining the Msc. degree, the petitioner got the said additional qualification also recorded in the Register under the Tamil Nadu Nurses and Midwives Act, 1926. Ext.P7 is the certificate issued by the Tamil Nadu Nurses and Midwives Council to the petitioner in this connection. The petitioner, thereafter, obtained Ph.D in Paediatric Nursing from the Tamil Nadu Dr.M.G.R. Medical University. Ext.P9 is the certificate of declaration of the Ph.D of the petitioner in Paediatric Nursing made by the Tamil Nadu Dr.M.G.R.Medical University, Chennai. The petitioner is presently

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WP(C).No.20579 OF 2019(V)

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stationed in Kerala. The case of the petitioner is that the Indian Nursing Council has now decided to issue a unique identification number and card for the nurses in the State on the basis of their registration under the Council. In order to get the qualifications of the petitioner included in the identity card, it was necessary for the petitioner to get the additional qualifications secured by her after the registration also, recorded in the Register maintained by the Council. The petitioner, therefore, applied to the Council for inclusion of her Post Basic B.Sc. degree in Nursing, Masters Degree in Nursing as also the Ph.D degree in Paedeatric Nursing recorded in the Register maintained by the Council. Ext.P16 series are the applications preferred by the petitioner before the Council in this connection. Ext.P16 series applications now stand rejected by the first respondent. As noted, Ext.P18 is the communication issued by the second respondent in this connection and the petitioner is aggrieved by the said decision of the Council.

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3 . A counter affidavit has been filed by the second respondent on behalf of the Council. The stand taken by the Council in the counter affidavit is that the petitioner has completed the Post Basic Degree in Nursing during her tenure of appointment in the service of the State Government without availing leave and the petitioner is, therefore, not entitled to get the said qualification as also

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the qualifications acquired thereafter based on the said qualification recorded in the Register maintained by the Council. In order to substantiate the said stand, it was stated in the counter affidavit that the applicants, for the purpose aforesaid, are required in terms of the guidelines framed by the Council to produce the course certificate along with the application for registration and the course certificate produced by the petitioner for the said purpose, namely R1(b) revealed that the course period was from 06.07.1996 to 17.11.1998 and that in the meanwhile, the petitioner was appointed provisionally as a Staff Nurse in the State service and she joined in the State service on 10.07.1998. Ext.R1(c) proceedings of the District Medical Officer of Health, Manjeri was produced by the Council to substantiate their stand that the petitioner joined duty in the State service on 10.07.1998. In short, the stand of the Council is that since the petitioner was pursuing the course for about four months without availing leave, the petitioner is not entitled to get her additional qualifications recorded in the Register.

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4 . Heard the learned Senior Counsel for the petitioner as also the learned counsel for the first respondent.

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The reason stated by the Council to reject the requests made by the petitioner for inclusion of her additional qualifications in the Register maintained under the Act as reiterated in the counter

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affidavit is that the petitioner was pursuing her Post Basic Degree Course in Nursing for about four months after securing employment as a Staff Nurse in the State service, without availing leave. According to the Council, the petitioner is, therefore, not entitled to get the said qualification and the qualifications acquired thereafter on the strength of said qualification recorded in the Register. The decision taken by the Council in this regard is also part of the records as Ext.P26. The genuiness and the authenticity of Ext.P3 Post Basic Degree obtained by the petitioner from the Rajiv Gandhi University of Health Sciences, Karnataka is neither seen assailed nor doubted by the Council. To a specific question put to the learned counsel for respondents 1 and 2 for clarification as to whether the Council is doubting the genuineness of Ext.P3 Post Basic B.Sc. Nursing Degree of the petitioner, the counsel has emphatically answered in the negative. The Council has also no case either in Ext.P26 or in Ext.P18 communication or in the counter affidavit filed in the matter that the petitioner has secured the Post Basic Degree in Nursing without attending the regular course. The only reason stated in all the documents is that about four months prior to the completion of the course, the petitioner secured a provisional appointment as a Staff Nurse in the service of the State and she has completed the course without obtaining leave. The question, therefore, is as to whether the Council is justified in refusing to include

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the additional qualifications secured by the petitioner in the Register maintained under the Act for the reason that the petitioner has not secured leave for continuing the Post Basic B.Sc. Nursing course for about four months.

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6 . The Act is one intended to provide for the registration and training of nurses, midwives and similar. Section 20 of the Act dealing with the eligibility for registration, and Section 23 of the Act dealing with refusal of registration and removal and re-entry, read thus:

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Eligibility for Registration .-(1) Subject to the provisions of sub-sections (2) and (3)--

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(i) every person who has undergone such course of training and passed such examination as may be prescribed by rules for the purpose of conferring a right of registration as a [“nurse, midwife, auxiliary nurse-midwife or health visitor”] under this Act; and

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(ii) every person who, within the period of one year or such other longer period as may be fixed by the Government, from the date of commencement of the Nurses and Midwives (Amendment) Act, 1964, proves that he had been in regular practice as a nurse or midwife, for a period of not less than three years preceding the first day of April, 1964, shall be eligible for registration under this Act:

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Provided that no nurse or midwife shall be registered under clause (ii) after the expiration of one year or such other longer period as may be fixed by the Government from the date on, which the Nurses and Midwives (Amendment) Act, 1964, comes into force.”

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(2) Applicants for registration under clause (ii) of subsection (1) shall produce a certificate in the form prescribed by rules. The certificate shall be from a registered practitioner or the Tahsildar of the taluk.

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(3) No person shall be eligible for registration under sub-

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section (1) if he is subject to any of the disqualifications mentioned in clauses (a) to (d) of Section 6.

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xxx xxx xxx xxx

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Refusal of registration and removal and re-entry.- (1) Subject to such conditions as may be prescribed by rules, the Council may, after giving an opportunity to the person concerned to appear and to be heard, and after holding an inquiry in the manner prescribed by rules refuse to enter in the register the name of any person or may order the removal of the name of any person from the register. (2) The order passed under sub-section (1) shall be in writing and shall be served on the person concerned in the manner prescribed by rules.

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A reading of the provisions of the Act including those extracted above indicates that the scheme of the Act is that every person who has passed the examinations prescribed by rules for the purpose of conferring a right of registration as a nurse or midwife under the Act, unless disqualified in terms of Section 6 of the Act, shall be permitted to be registered as a nurse or midwife, as the case may be. The petitioner is a person registered under the Act. There is no provision in the Act for including the additional qualifications of the registered persons in the Register. But, it is conceded, and it has come out that as a practice, the additional qualifications secured by registered persons are being included in the Register on an application, not only in the State but also in other States following the provisions in the respective statutes for fresh registration. It is not disputed that the additional qualifications secured by the petitioner which are sought to

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be included in the Register are qualifications conferring on her a right of registration under the Act. The Council has no case that the petitioner suffers any disqualification in terms of Section 6 of the Act. In the circumstances, I have no doubt that the petitioner is entitled to include the additional qualifications secured by her in the Register maintained under the Act.

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True, Section 23 of the Act confers power on the Council to refuse registration in appropriate cases. That power, according to me, cannot be exercised arbitrarily or at the whims and fancies of the Council. When the powers and functions of a statutory authority is prescribed and circumscribed by the statute, it can be exercised only in the manner provided for and contemplated by the statute. Going by the scheme of the Act, the power to decline registration or to include additional qualifications in the Register, can be exercised only in cases where the person concerned is not entitled to registration on the basis of those qualifications. When a person is entitled to registration in terms of the Act and the Rules made thereunder on passing a course prescribed, the Council cannot go behind the qualification and examine as to whether the candidate concerned was eligible to undergo the course or as to whether it was lawful for the candidate to undergo the course as done in the instant case. The petitioner is, therefore, entitled to succeed.

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In the result, the writ petition is allowed and respondents 1 and 2 are directed to include the additional qualifications of the petitioner, viz, Post Basic Bsc. Degree in Nursing, Msc. degree in Nursing and Ph.D in Paediatric Nursing in the Register maintained under the Act.

Sd/-

P.B.SURESH KUMAR

JUDGE

WP(C).No.20579 OF 2019(V)

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT P1	THE PHOTOSTAT COPY OF THE DIPLOMA CERTIFICATE SL.NO.3102 BOOK NO.125 DATED 10.08.1993 ISSUED BY THE KERALA NURSES AND MIDWIVES COUNCIL, TVM.
EXHIBIT P2	THE PHOTOSTAT COPY OF THE REGISTRATION CERTIFICATE RO 12018020672 DATED 18.09.2018 13.35.58 IST ISSUED BY THE REGISTRAR, KERALA NURSES AND MIDWIVES COUNCIL, TVM.
EXHIBIT P3	THE PHOTOSTAT COPY OF THE DEGREE CERTIFICATE DATED 11.3.1999 ISSUED BY THE RAJIV GANDHI UNIVERSITY OF HEALTH SCIENCES, KARNATAKA.
EXHIBIT P4	THE PHOTOSTAT COPY OF THE REGISTRATION CERTIFICATE REGISTER NO.452 DATED 3.5.2006 ISSUED BY THE KARNATAKA STATE NURSING COUNCIL, BANGALORE.
EXHIBIT P5	THE PHOTOSTAT COPY OF THE REGISTRATION CERTIFICATE REGISTER NO.RR-126 DATED 3.5.2006 ISSUED BY THE KARNATAKA STATE NURSING COUNCIL, BANGALORE.
EXHIBIT P6	THE PHOTOSTAT COPY OF THE DEGREE CERTIFICATE REGISTRATION NO.30031432 DATED 27.3.2007 ISSUED BY THE TAMIL NADU DR.M.G.R. MEDICAL UNIVERSITY, CHENNAI.,
EXHIBIT P7	THE PHOTOSTAT COPY OF THE CERTIFICATE OF ADDITIONAL QUALIFICATION DATED 20.3.2008 ISSUED BY THE TAMIL NADU NURSES AND MIDWIVES COUNCIL, CHENNAI.
EXHIBIT P8	THE PHOTOSTAT COPY OF THE CERTIFICATE OF ADDITIONAL QUALIFICATION NURSE NO.70972, MIDWIFE NO.76235 TAMIL NADU NURSES AND MIDWIVES COUNCIL, CHENNAI.
EXHIBIT P9	THE PHOTOSTAT COPY OF THE DEGREE CERTIFICATE DOCTOR OF PHILOSOPHY DATED 20.08.2013 ISSUED BY THE M.G.R. MEDICAL UNIVERSITY, CHENNAI.
EXHIBIT P10	THE PHOTOSTAT COPY OF THE COMMUNICATION

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	NO.1/TN/CSR/2019-2020/8189 DATED 20.5.2019 ISSUED BY THE TAMILNADU NURSES AND MIDWIVES COUNCIL, MYLAPORE-CHENNAI.
EXHIBIT P11	THE PHOTOSTAT COPY OF THE CERTIFICATE NO.C1/2345/06/NC DATED 29.08.2006 ISSUED BY THE KERALA NURSES AND MIDWIVES COUNCIL, RED CROSS ROAD, TVM-35.
EXHIBIT P12	THE PHOTOSTAT COPY OF THE REPRESENTATION DATED 14.10.2014 SUBMITTED BY THE PETITIONER TO THE REGISTRAR, KERALA NURSES AND MIDWIVES COUNCIL, RED CROSS ROAD, TVM- 35.
EXHIBIT P13	THE PHOTOSTAT COPY OF THE ACKNOWLEDGEMENT CARD DATED 17.10.2014 ISSUED BY THE DEPARTMENT OF POSTS SHOWING THE RECEIPT OF EXHIBIT P12.
EXHIBIT P14	THE PHOTOSTAT COPY OF THE RELEVANT NOTICE PUBLISHED BY THE 1ST RESPONDENT, DATED 19.08.2013 ISSUED BY THE KERALA NURSES AND MIDWIVES COUNCIL, RED CORSS ROAD, TVM-35.
EXHIBIT P15	THE PHOTOSTAT COPY OF THE NOTIFICATION NO.C. 344057/17/N.C. DATED 15.5.2019 ISSUED BY THE KERALA NURSES AND MIDWIVES COUNCIL, RED CROSS ROAD, TVM-35,
EXHIBIT P16	THE PHOTOSTAT COPY OF THE APPLICATION DATED 21.05.2019 SUBMITTED BY THE PETITIONER TO THE KERALA NURSES AND MIDWIVES COUNCIL, RED COROSS ROAD, TVM-35
EXHIBIT P16 A	THE PHOTOSTAT COPY OF THE APPLICATION DATED 21.05.2019 SUBMITTED BY THE PETITIONER TO THE KERALA NURSES AND MIDWIVES COUNCIL, RED COROSS ROAD, TVM-35
EXHIBIT P16 B	THE PHOTOSTAT COPY OF THE APPLICATION DATED 21.05.2019 SUBMITTED BY THE PETITIONER TO THE KERALA NURSES AND MIDWIVES COUNCIL, RED COROSS ROAD, TVM-35
EXHIBIT P17	THE PHOTOSTAT COPY OF THE REPRESENTATION DATED 21.05.2019 SUBMITTED BY THE PETITIONER TO THE REGISTRAR, KERALA NURSES AND MIDWIVES COUNCIL, RED CROSS ROAD, TVM- 35.

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EXHIBIT P18	THE PHOTOSTAT COPY OF THE COMMUNICATION NO.G.169/2013/N.C. DATED 9-7-2019 ISSUED BY THE REGISTRAR, KERALA NURSES AND MIDWIVES COUNCIL, RED CROSS ROAD, TVM-35, TO THE PETITIONER.
EXHIBIT P19	THE PHOTOSTAT COPY OF THE NO OBJECTION CERTIFICATE DATED MARCH 1996, ISSUED BY THE SUPERINTENDENT, MEDICAL COLLEGE HOSPITAL, CALICUT, TO THE PETITIONER.
EXHIBIT P20	THE PHOTOSTAT COPY OF THE MEMORANDUM NO.IHS/NSG/982/98-99 DATED 8-7-1998 ISSUED BY THE PRINCIPAL, INSTITUTE OF HEALTH SCIENCES, MANGALORE-575013.
EXHIBIT P21	THE PHOTOSTAT COPY OF THE MARK LIST REG NO.96N7006 DATED 16.01.1999 ISSUED BY THE INSTITUTE OF HEALTH SCIENCES, MANGALORE.
EXHIBIT P22	THE PHOTOSTAT COPY OF THE JUDGMENT DATED 10.4.2015 IN WP(C) NO.10746 OF 2014(P) PASSED BY THE HON'BLE COURT OF KERALA AT ERNAKULAM.
EXHIBIT P23	THE PHOTOSTAT COPY OF THE JUDGMENT DATED 2.11.2017 IN W.A NO.1631 OF 2015 PASSED BY THE HON'BLE HIGH COURT OF KERALA, AT ERNAKULAM.
EXHIBIT P24	THE PHOTOSTAT COPY OF THE CERTIFICATE DATED 26.2.1999 ISSUED BY THE DR.M.V. SHETTY INSTITUTE OF HEALTH SCIENCES, MANGALORE, KARNATAKA.
EXHIBIT P25	THE PHOTOSTAT COPY OF THE ORDER G.O(RT) NO.3367/2004/H & FWD DATED 19.8.2004, ISSUED TO THE PETITIONER
EXHIBIT P26	THE PHOTOSTAT COPY OF THE MINUTES OF THE MEETING OF THE MEMBERS OF THE SUB-COMMITTEE OF THE KERALA NURSES AND MIDWIVES COUNCIL HELD ON 22-6-2019 AT 11AM IN THE COUNCIL HALL TVM
EXHIBIT P27	THE PHOTOSTAT COPY OF THE NOTIFICATION NO.C.34405/17/N.C DATED 13-8-2019 ISSUED BY THE KERALA NURSES AND MIDWIVES COUNCIL, TVM-35

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RESPONDENTS' EXHIBITS:

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EXHIBIT R1(A) TRUE PHOTOCOPY OF THE GENERAL INSTRUCTIONS ISSUED BY THE 1ST RESPONDENT EXHIBIT R1(B) TRUE PHOTOCOPY OF THE COURSE CERTIFICATE DATED 26.02.1999 SUBMITTED BY THE PETITIONER EXHIBIT R1(C) TRUE PHOTOCOPY OF ORDER NO.A521235/94/A DATED 04.02.1999 WITH TYPED COPY EXHIBIT R1(D) TRUE PHOTOCOPY OF THE ORDER NO.A6-15241/2005/DMOH DATED 12.01.2007 WITH TYPED COPY EXHIBIT R1(E) TRUE PHOTOCOPY OF THE RESOLUTION NO.1 DATED 22.06.2019

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//TRUE COPY// PA TO JUDGE

Dr.Janet.J v. the Kerala Nurses and Midwives Council

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Dr.Janet.J v. the Kerala Nurses and Midwives Council

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