[2023:RJ-JD:34274] HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 10293/2023 Rural Education And Health Develpment Organization, (S.g.r. College Of B.sc. Nursing), Khasra No. 2791/2782, Gram Hadota, Chomu, Jaipur, Rajasthan, Through Its Secretary Banna Lal Yadav S/o Shri Hanuman Sahay, Aged About 70 Years.
----Petitioner Versus
1. State Of Rajasthan, Through Its Principal Secretary, Medical And Health Department, Government Of Rajasthan, Government Secretariat, Jaipur (Rajasthan).
2. Rajasthan Nursing Council, Through Its Registrar, B 39, Sardar Patel Marg, C Scheme, Jaipur (Rajasthan).
3. Rajasthan University Of Health And Science, Through Its Registrar, Kumbha Marg, Partap Nagar, Jaipur, Rajasthan.
4. Private Physiotherapy, Nursing And Para Medical Institutions Society, Branch Office Jodhpur Through Its Secretary, Plot No.273, Subhash Nagar, Pal Road, Jodhpur Rajasthan.
----Respondents For Petitioner(s) : Mr. Ankur Mathur a/w Mr. Harshvardhan Thanvi For Respondent(s) : Mr. Sandeep Shah, Sr. Advocate & AAG a/w Mr. Abhimanyu Singh Rathore and Mr. Nishant Bapna Ms. Vandana Bhansali, AGC a/w Ms. Khushi Makwana Dr. Mohit Singhvi Mr. Sangram Singh Ms. Shubhra Singh, Addl. Chief Secretary, Medical & Health Department, Govt. of Rajasthan on VC HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI Judgment Reserved on 10/10/2023 Pronounced on 20/10/2023
1. This writ petition under Article 226 of the Constitution of India has been preferred claiming the following reliefs: (Downloaded on 12/11/2023 at 08:04:53 AM) [2023:RJ-JD:34274] (2 of 10) [CW-10293/2023] "It is, therefore, respectfully prayed that this writ petition may kindly be allowed and by an appropriate writ, order or direction:-
(i) The record of the case may kindly be called for;
(ii) The respondents may further be directed to include the name of the petitioner institution in the list of eligible institutions for the purpose of counselling in B.Sc. Nursing Course for academic session 2022-23 onwards.
(iii) The respondent federation/association may be directed to recommend the petitioner institution to the authorities for include the name of petitioner institution in its counselling.
(iv) The respondent University may further be directed to accept the annual affiliation and other fees of the petitioner institution.
(v) Cost of litigation and damages may also be allowed in favour of the petitioner.
(vi) Any other appropriate writ or order or direction which is favorable to the petitioner in the facts and circumstances of the case may kindly be granted to the petitioner."
2. As per the pleaded facts, the petitioner-College was established with an object to run B.Sc. Nursing Course, which is governed by the provisions of the Indian Nursing Council Act, 1947 (hereinafter referred to as 'Act of 1947'). For establishment of Nursing School in the private sector, the College/Institution concerned is required to obtain No Objection Certificate (NOC) from the State Government; accordingly, the petitioner-College herein submitted an application along with the requisite fees for getting the necessary NOC for establishment of B.Sc. Nursing Institute on 29.01.2010.
2.1. Thereafter, requisite inspection fees was deposited with the respondent-Rajasthan Nursing Council and was requested to inspect the petitioner-Institution for running the nursing course. Furthermore, by an order dated 06.12.2019 passed by the Medical & Health Department of the State, a ban imposed on issuance of NOC for establishment of new nursing institutions, was ordered to (Downloaded on 12/11/2023 at 08:04:53 AM) [2023:RJ-JD:34274] (3 of 10) [CW-10293/2023] be removed. However despite the same, the concerned authorities did not consider the candidature of the petitioner-Institution for grant of the requisite NOC.
2.2. Subsequently, the respondent authorities vide the office notes dated 15.10.2020, 03.11.2020 and 09.12.2020 clarified that the Indian Nursing Council (INC) had no power to grant recognition to Nursing Institution. For academic session 2020- 2021, a list of eligible institutions was issued for the admission process in the B.Sc. Nursing Course, however, name of the petitioner-College was not mentioned therein, as the necessary inspection had not been conducted by the concerned authorities. Thereafter, the petitioner-College approached this Hon'ble Court by filing S.B. Civil Writ Petition no.5173/2022, wherein directions were issued to inspect the College; subsequent to this, the inspectors appointed by the Rajasthan Nursing Council (RNC) carried out the inspection and a positive recommendation was forwarded to the respondent authorities vide the report dated 15.10.2022. However, the NOC was still not issued. 2.3. Yet again, the petitioner-College approached the respondent- State for grant of NOC, however its candidature was not considered for the academic session 2022-23. Thus, another writ petition no.19356/2022 was filed whereupon the petitioner- College was provisionally allowed in counselling for the B.Sc. Nursing Course for academic session 2022-23 vide order dated 02.02.2023 passed by a Coordinate Bench of this Hon'ble Court, and finally vide order dated 27.04.2023, while disposing of the (Downloaded on 12/11/2023 at 08:04:53 AM) [2023:RJ-JD:34274] (4 of 10) [CW-10293/2023] said writ petition, certain directions were issued. Relevant portion of the said order dated 27.04.2023 is reproduced as hereunder: "13. In view of the above submissions, this Court while adjudicating category No.1 out of the broader propositions jointly framed by learned counsel for the parties; allowing the present writ petitions directs the respondents to abide by the assurances given by their counsel and revisit the NOC and grant the same to the petitioners within a period of 30 days from the date of receiving a certified copy of this order, in case they are fulfilling the condition of own 100 bed hospital criteria as well as other eligibility criteria for grant of NOC.
14. In case, there is any rejection, it shall have to carry a speaking order for each institute, giving reasons.
15. It is further directed that once such result is declared within a period of 30 days; if intake capacity is available for the students of the respective courses and the minimum time period for required attendance is remaining, the respondents shall be required to take a considered decision for conducting fresh counselling for the vacant seats equitably between the institutions, which succeed in the process of grant of NOC.
16. In case, the affiliation fee or any other fee chargeable by the State and the University is the issue for grant of NOC, then the petitioners shall be given at least one chance to submit such amount, strictly in accordance with law.
17. It is needless to say that, such considered decision on fresh counselling shall be taken while keeping into consideration the interest of the on going academic session, the students concerned and the institutions.
18. In case, any grievance remains, the parties shall be at liberty to come back to the Court.
19. It is made clear that the list of cases falling in the category- I has been jointly submitted by all the respective counsel for the parties.
20. If any case in the list of present cause title falls outside the purview of category-I, the respondents shall be at liberty to reject the NOC."
(Downloaded on 12/11/2023 at 08:04:53 AM) [2023:RJ-JD:34274] (5 of 10) [CW-10293/2023] However, the respondent authorities never complied with the aforementioned interim order passed by the Hon'ble Court. Thus, aggrieved of the inaction in considering candidature of the petitioner-College, the present writ petition has been preferred claiming the afore-quoted reliefs.
3. Learned counsel for the petitioner submitted that the action of the respondent State in not considering the case of the petitioner-College for undertaking admissions in B.Sc. Nursing Courses for the academic session 2022-23 even after having sufficient infrastructure for establishment of new B.Sc. Nursing Course and interim order dated 02.02.2023 passed by this Hon'ble Court, wherein a direction was issued for inclusion of the name of the petitioner-College in the ongoing counselling, is unjust, arbitrary and illegal.
3.1. It was also submitted that the application dated 23.02.2023 submitted by the petitioner-College with the requisite affiliation fees in pursuance of the interim order, was ignored by the respondent authorities.
3.2. It was further submitted that as per the provisions of the Act of 1947, only the concerned State Nursing Councils had the power and jurisdiction to inspect institutions for the purpose of ascertaining adequacy and suitability of such institutions for conducting Nursing Courses.
3.3. However, learned counsel harped upon the positive inspection report dated 15.10.2022, which was prepared and submitted by the RNC itself after inspecting the petitioner- institution for the purpose of ascertaining whether the petitioner- (Downloaded on 12/11/2023 at 08:04:53 AM) [2023:RJ-JD:34274] (6 of 10) [CW-10293/2023] institution is having the necessary infrastructural facilities etc. for conducting the Course in question, and found that the petitioner- institution is not lacking in any manner whatsoever. Thus, as per learned counsel, there was no requirement for conducting re- inspection of the petitioner-institution.
4. On the other hand, Mr. Sandeep Shah, learned Senior Advocate & Additional Advocate General assisted by Mr.Abhimanyu Singh Rathore and Mr. Nishant Bapna; Ms. Vandana Bhansali, AGC with Ms. Khushi Makwana; Dr. Mohit Singhvi; Mr. Sangram Singh appearing on behalf of the respondents; as well as Ms. Shubhra Singh, Addl. Chief Secretary, Medical & Health Department, Govt. of Rajasthan appearing on VC, while opposing the submissions made on behalf of the petitioners, submitted that the present writ petition is barred by the principle of res judicata as the petitioner- College had on an earlier occasion filed a writ petition being SBCWP No. 19356/2022 with identical prayers and the same came to be decided vide order dated 27.04.2023 along with other connected matters.
4.1. It was also submitted that any positive inspection report by a Committee of RNC did not entitle petitioner or any institute for grant of NOC by the State Government for the reason that the RNC report with recommendation is first placed before the Scrutiny Committee, whereafter the inspection report is verified by the Scrutiny Committee and the same is forwarded to the State Government, and it is the State Government that grants or rejects the case for the NOC.
(Downloaded on 12/11/2023 at 08:04:53 AM) [2023:RJ-JD:34274] (7 of 10) [CW-10293/2023] 4.1.1. In furtherance, it was submitted that if the Scrutiny Committee found lacuna in the inspection report, it is not bound to make recommendation for grant of the NOC.
4.2. It was further submitted that in pursuance of the aforesaid order though respondents issued a letter dated 30.05.2023 to the petitioner-College requiring it to submit certain relevant documents before the concerned respondent authority, however no documents were submitted by the petitioner-College; in pursuance of the decision taken in the meeting dated 07.06.2023, the RNC vide letter dated 09.06.2023 was directed to conduct fresh inspection of the petitioner-institution. Further, when the RNC constituted the inspection team, the petitioner-College by letter dated 14.06.2023 showcased its inability to get the institution inspected, thus due to the subsequent action of the petitioner, its application for grant of NOC was rejected and the same was communicated by letter dated 03.07.2023. 4.3. It was also submitted that the inspection report of the RNC does not have recording of 100 bedded own hospital of the petitioner-College and no directions for grant of NOC were given by the Hon'ble High Court while passing the order dated 27.04.2023.
5. Heard learned counsel for the parties as well as perused the record of the case.
6. This Court observes that the petitioner-College was established for imparting education and nursing training for the Course in question, and for establishment of the same, application was submitted for grant of NOC in the year 2010; whereafter the (Downloaded on 12/11/2023 at 08:04:53 AM) [2023:RJ-JD:34274] (8 of 10) [CW-10293/2023] inspection fees was deposited with the RNC and inspectors were appointed for undertaking the necessary inspection for enhancement of seats in the petitioner-College, and accordingly, a positive inspection report was forwarded to the respondent-State. However, the NOC was not granted in favour of the petitioner- College, on count of which, the petitioner-College approached this Hon'ble Court by way of filing a writ petition, whereupon directions were issued for fresh inspection of the institution; however, the petitioner-College was not granted the NOC for the academic session 2022-2023.
7. This Court observes that once the inspection is conducted by the RNC and report is made regarding the same, such report is required to be forwarded to the Scrutiny Committee, whereafter the Committee verifies the inspection report and forwards the same to the State Government; after which, the State Government either grants the NOC to the institute or declines to do so. Thus, it is clear that having a positive inspection report does not necessarily entitle an institution for grant of NOC, and therefore, in the present case, even though the petitioner-College had a positive inspection report from the RNC dated 15.10.2022, yet that in itself did not place any obligation on the State Government to grant NOC to the petitioner-College.
8. This Court also observes that in pursuance of the order dated 27.04.2023 of this Hon'ble Court, letter dated 30.05.2023 was issued to the petitioner-College; however no documents were submitted before the respondents, nor any correspondence was made. Thus in the meeting dated 07.06.2023, a decision was (Downloaded on 12/11/2023 at 08:04:53 AM) [2023:RJ-JD:34274] (9 of 10) [CW-10293/2023] taken to reinspect the institution(s) within 3 days and accordingly to place the report before the Committee; in pursuance of such decision, a letter was issued to the RNC to conduct re-inspection; a letter was issued to the petitioner-College as well. However, the same was declined by the petitioner-College with the reason that there was no need to get its infrastrcuture re-inspected as the same had already been done resulting in a positive inspection report; accordingly, the respondents took the decision to reject the petitioner's application for grant of NOC for the academic session 2022-2023, vide order dated 03.07.2023, which reads as under:
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9. This Court is conscious of the fact that the issue regarding the policy of own 100 bedded hospital, as raised herein, is pending adjudication before the Division Bench of this Hon'ble Court in D.B. Civil Special Appeal (Writ) No. 216/2022 (Rajasthan University of Health Sciences Vs. Mahatma Gandhi B.Sc.
Nursing College) & other connected appeals, and therefore, on that count also, it would not be appropriate for this Court to grant any further relief prayed for herein, at this stage.
10. This Court is, therefore, of the opinion that the impugned action on the part of the respondents is neither arbitrary nor contrary to law.
11. Thus, in view of the above, the present petition is dismissed. However, after the final verdict is rendered by the Hon'ble Division Bench in the aforementioned pending Special Appeal, the petitioner shall be at liberty to approach this Court again, strictly in accordance with law. All pending applications stand disposed of.
(DR. PUSHPENDRA SINGH BHATI), J.
SKant/-(Downloaded on 12/11/2023 at 08:04:54 AM)
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