U.P. Pvt. Nursing And Paramedical ... vs State Of U.P. Thru. Prin. Secy. ...
2023 Latest Caselaw 3610 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 20
 

 
Case :- WRIT - C No. - 760 of 2023
 

 
Petitioner :- U.P. Pvt. Nursing And Paramedical Colleges Association Thru.General Secy. Dharmendra Gupta And Anr.
 
Respondent :- State Of U.P. Thru. Prin. Secy. Medical Education Lko. And Others
 
Counsel for Petitioner :- Meenakshi Singh Parihar,Dr. V.K. Singh
 
Counsel for Respondent :- C.S.C.,Gyanendra Kumar Srivastava,Kshitij Mishra,Rajiv Srivastava,Shubham Tripathi
 

 
Hon'ble Brij Raj Singh,J.

1. Heard Sri H.G.S. Parihar, learned Senior Advocate assisted by Ms. Meenakshi Singh Parihar, and Dr. V. K. Singh, learned counsel for the petitioner, Sri Vinod Kumar Singh learned Additional Chief Standing Counsel for respondent State, O.P. No.1, Sri Sanjay Bhasin, learned Senior Advocate assisted by Sri Kshitij Mishra, learned counsel for the O.P. No.2, Sri Shubham Tripathi, learned counsel for the O.P. No.3, Sri Gyanendra Kumar Srivastava, learned counsel for the O.P. No.4 and Sri Rajiv Srivastava, learned counsel for O.P. No.5.

2. The petitioner by this petition has made following reliefs:-

"i) issue a writ, order or direction in the nature of mandamus commanding the opposite parties to permit the members paramedical and nursing colleges of the petitioners association to take admissions in the B. Sc. (Nursing) course from the open market in accordance with the eligibility criteria as prescribed by the Indian Nursing Council as per their sanctioned intake capacity for the education session 2022-23."

3. The brief facts of the case are that the petitioner is a registered society registered under the Societies Registration Act, 1860 and has got its own bylaws duly approved by the Deputy Registrar, Firms, Societies & Chits, Lucknow. The petitioner No.1 has formed an Association for 177 private Nursing & Para Medical Colleges in order to watch their common interests and the petitioner No.1 has filed the present petition and the cause of the private colleges has been espoused by the petitioner. It has been submitted that all the members of the petitioner No.1 are affiliated wither with the King George's Medical University or with Atal Bihari Vajpayee Medical University, Lucknow and they are duly recognized for imparting education in B.Sc. (Nursing), Basic B.Sc. (Nursing), M.Sc. (Nursing) and other Para Medical Courses duly approved by the Nursing Council of India.

4. The Common Entrance Examination for B.Sc. (Nursing) Course was held on 31.7.2022 and the result of the said entrance examination was declared on 7.8.2022. The total 26708 candidates appeared in the different district of the State of U.P. out of which approximately 13000 candidates were declared successful in the said Entrance Examination. After declaration of Entrance Examination, the O.P. No.2 issued time-table for first round online counselling of candidates for admission in B.Sc. (Nursing) and Post Basic B. Sc. (Nursing) Courses I n the Government as well as private paramedical colleges in which the process of registration was to start on 6.10.2022 and the last date of taking admission was 20.10.2022. In October, 2022, the O.P. No.1 issued notice indicating that the counselling was postponed. Later on, the time for counselling was extended by notice dated 7.10.2022 and amended time-table was issued. Another notice dated 12.10.2022 was issued and time was extended for registration of first round of counselling from 11.10.2022 to 12.10.2022. Again, vide notice dated 17.10.2022, time was extended for registration of first round of counselling from 17.10.2022 to 18.10.2022. Again, time was extended for counselling of B. Sc. (Nursing) Course upto 5.11.2022 vide notice dated 31.10.2022. The second round counselling notice was issued on 18.11.2022 and last date for admission was 9.12.2022. Again time was extended vide notice dated 26.11.2022. The time-table for second round counselling was issued on 1.12.2022 by the O.P. No.2 and date of online choice filling was fixed on 1.12.2022 and last date for admission online was fixed as 13.12.2022. The time-table of mo up round for admission was issued on 13.12.2022 by the O.P. No.2 and date of online registration for admission was fixed 13.12.2022 and last date for admission was fixed 28.12.2022. Again the date of second round counselling was extended from 15.12.2022 to 17.12.2022. The time-table of mop up round counselling was amended by order dated 19.12.2022 and date of online registration was provided 20.12.2022 and last date for admission was fixed 30.12.2022.

5. It has been submitted by the learned counsel for the petitioner that the attempt was made to fill up the vacancy but the intake capacity of required number of students could not be provided to various para-medical and nursing colleges.

6. Learned counsel for petitioner Sri H.G.S. Parihar has submitted that for the Session 2022-2023, the Government decided to revise the cut off marks for admission in Post Basic B.Sc. (Nursing)/M.Sc. (Nursing)/Graduate level paramedical courses for admission in session 2022-2023, vide letter dated 31.12.2022 (Annexure No.27 to the petition) whereby, the eligibility qualifying criteria has been relaxed and it has been mentioned that for common entrance examination, 2022 for admission in Post Basic B. Sc., M. Sc. (Nursing) and Graduate level courses, almost 90% seats of M. Sc. (Nursing) and 67% of Post Basic B. Sc. (Nursing) against the allocated seats of private paramedical and nursing colleges are still vacant, therefore, relaxation was provided by the State Government to grant permission to private paramedical institutions to take direct admission in the aforesaid courses in sessions 2022-2023 from amongst candidates for admission in Post Basic B. Sc. (Nursing) who have passed the GNM Course with 60% marks and who were not failed in any subject, be given direct admission in Post Basic B. Sc. (Nursing). For admission in Graduate level paramedical education the candidate who have passed Intermediate (Science) Examination with 60% or more marks may be given direct admission in Graduate level paramedical education.

7. Learned counsel for the petitioner has submitted that the State Government has relaxed the criteria in case of Post B.Sc. (Nursing), M. Sc. (Nursing) and the Graduate level paramedical courses, vide letter dated 31.12.2022 but so far as the B. Sc. (Nursing) Courses are concerned, the admission criteria has not been relaxed and the same is discriminatory.

8. Sri H.G.S. Parihar has submitted that similar issue arose before the Bombay High Court at Aurangabad Bench, in Writ Petition No.11077 of 2022 (Private Nursing Schools and Colleges Management Association through its President and another. Vs. The Union of India through its Secretary and others), decided by judgment and order dated 24.11.2022 wherein, it has been observed that admission on the basis of NEET Examination, 2022 was not possible because the merit was so high and the candidates were not available, therefore, admission was directed to be taken on the basis of HSC (10+2) Score. It has been submitted that against the judgment of Bombay High Court, Special Leave to Appeal (c) No(s).22654-22655 of 2022 (The Commissioner CET CELL. Vs. Private Nursing Schools and Colleges Management Association & others. Etc.) was filed and heard and judgment was passed on 13.12.2022 whereby the said SLP was dismissed. In the said SLP the Supreme Court did not interfere in the observations made by the Bombay High Court. Sri Parihar has submitted that in the present case also, the relaxation may be provided as has been done by the State for other paramedical courses and time schedule may be extended for admission.

9. Sri Rajiv Srivastava and Ms. Amita Srivastava learned counsel for O.P. No.5 have submitted that the Indian Nursing Council {Revised Regulations and Curriculum for B. Sc. (Nursing) Program), Regulations, 2020 (hereinafter referred to as "Regulations, 2020" has come into force and thereafter another notification dated 8.4.2022 has been issued and the Regulations, 2020 has been amended namely, Indian Nursing Council {Revised Regulations and Curriculum for B. Sc. (Nursing) Program-Corrigendum, Regulations, 2022 whereby, for admission the terms and conditions have been stipulated and as per Regulation G (7) of Regulations, 2020 for admission it is provided that the selection of candidates should be on the basis of merit of entrance examination. a) Aptitude for Nursing 20 marks, Physics 20 marks, c) Chemistry 20 marks, d) Biology 20 marks and e) English 20 marks. The minimum qualifying marks for entrance test shall be 50% marks. It has further been submitted that by the notification dated 8.4.2022, the terms and conditions of admission have been further clarified and the minimum qualification criteria for entrance test for admission in B. Sc. (Nursing) for General is 50%, for SC/ST/OBC 40%, General-PwD 45%, and for SC/ST/OBC-PwD, the minimum qualification is 40%.

10. Learned counsel for the O.P. No.5 has submitted that it is the O.P. No.5 who is the expert body and criteria for admission can be fixed by the O.P. No.5 and same cannot be questioned by the petitioner and he cannot claim any relaxation. He has further submitted that the eligibility fixed under the Regulation, 2020 is holding the field and unless it is quashed by the competent Court, the same will be adhered and no relaxation can be provided. He has further submitted that the request for extension of last date for admission in B. Sc. (Nursing) Course, Basic B. Sc. (Nursing) Course and Post B. Sc. (Nursing) Course has been considered with effect from 31.10.2022 to 31.12.2022. He has submitted that once the time-tale has been chalked out, it would not be possible to extend the time which in violation of the time limit of session of 2022-23. The limit of session cannot be extended and the Supreme Court has observed in Petitioner(s) for Special Leave to Appeal (C) No(s).10571/2022 (St. Stephens Hospital College of Nursing. Vs. Union of India and others.), vide order dated 10.6.2022, that last date for admission should be followed and the process of admissions in the educational institutions cannot be endless and, therefore, it must come to an end at a particular point of time. Learned counsel for the O.P. No.5 has also submitted that the petitioner has no locus to file writ petition because the students may be the sufferers who have not espoused their cause and the petitioner No.1 has no locus to espouse the cause.

11. Sri Sanjay Bhasin, learned Senior Advocate assisted by Sri Shubham Tripathi learned counsel for the O.P. No.2 has submitted that Regulations, 2020 amended by Regulations, 2022, has not been challenged by the petitioner and he cannot make request to relax the criteria which is fixed by the Apex Body i.e., the O.P. No.5. He has submitted that the case of Bombay High Court in the case of Private Nursing Schools and Colleges Management (supra) is not applicable in the present case because the State of Maharashtra has decided to take admission on the basis of result of NEET Examination, 2022. He has submitted that the Bombay High Court has noted the fact that on the basis of NEET Examination, the admission was not possible because criteria of Regulations has to be adhered and the admission on the basis of NEET examination is not envisaged in Regulation.

12. Sri Sanjay Bhasin has submitted that the notification dated 11.8.2021 indicates that NEET/UG result should be utilized/restricted only to other entites or Central or State Government and it would not be mandatory/compulsory for B. Sc. (Nursing) Course and the State of Maharashtra has proceeded to effect admissions to the regular batch by relying upon the NEET-UG score, in violation of Regulations wherein it is provided that the admission to the B. Sc. Nursing course should be completed either by the merit list or by conducting entrance examination by the State Government/Universities.

13. Heard learned counsel for the parties counsel.

14. Regulations, 2020 and amended Regulations, 2022 provide the eligibility criteria for admission of B. Sc. (Nursing). It is admitted on record that the answering respondents have extended time to complete the counselling of first found, second round and then mop up round and the candidates who were successful, were afforded opportunity to take admission. It is also on record that the cut off date for Session 2022-23, is 31.12.2022 and the State Government or the O.P. No.5 has not extended the cut off date of session 2022-23. The terms and conditions are envisaged in Regulations, 2020 and minimum qualifying marks for entrance test has been fixed for 50% marks. Nothing has come on record that the State and O.P. No.5 have violated the criteria provided in the Regulations while taking admission. The arguments advanced by Sri Parihar that discrimination has been done by the respondents is not sustainable because for B. Sc. (Nursing) course, there is Regulations, 2020 and revised Regulations, 2022. The criteria has been fixed. The minimum 50 % marks has been fixed and percentile of five subjects for entrance examination has been fixed and the total marks of qualifying test is 50%.

15. Admittedly,, those candidates who are found eligible under the criteria of Regulations, 2020 and 2022, have been admitted and there is no discrimination. The criteria has been further relaxed in view of Regulations, 2022. For General it is 50%, for SC/ST/OBC 40%, General-PwD 45%, and for SC/ST/OBC-PwD, the minimum qualification is 40%. Thus, the Court cannot go beyond the eligibility criteria fixed by the O.P. No.5. The O.P. No.5 is the Apex Body and is expert to prescribe the qualification/eligibility criteria. It is further clarified that the cut off date for admission was upto 31.12.2022 and the period is over and it is settled law that the cut off date cannot be extended by the Court because the admissions have already taken place and in the first week of February, 2023, the notification was issued on 21.10.2022 by the O.P. No.5 after clarification. The last date for academic session 2022-23 has been stipulated by the said notification dated 31.10.2022 starting from 310.10.2022 to 31.12.2022. The Supreme Court has taken note of the cut off date fixed by the authority in the case of St. Stephens Hospital College of Nursing (supra) and has observed that the process of admission in the educational institutions cannot be endless. It must come to an end at a particular point of time. If there is any extension and/or deviation from the time schedule, that will ultimately affect the education. In the present case, the time has been fixed upto 31.12.2022. On that score also, it would not be possible to relax the criteria as required by the petitioners.

16. The judgment of Maharashtra Government is also worthwhile to be discussed here. It is observed in the case of Private Nursing Schools and Colleges Management (supra) that the State Government of Maharashtra has lost sight of the fact that the Nursing Council has introduced notification dated 16.6.2022 and as per notification, it is clarified that the course of B. Sc. (Nursing) for academic year 2022-23 can be completed either by merit list or aggregate percentage of marks obtained in the three core subjects i.e., Physics, Chemistry, Biology of the qualifying examination (10+2) and having passed in English individually or by conducting an entrance examination. It has further been observed in the aforesaid case that on the basis of merit of score of NEET-UG, the admission was not correct course because the State of Maharashtra should have either adopted the mode of admission by entrance or by aggregate percentile of marks. It was thus, deviation in the case of Private Nursing Schools and Colleges Management (supra). That is why, the Court has passed the order directing the State of Maharashtra to admit the student of B. Sc. (Nursing) on the basis of HSC (10+2) score as per admission guidelines.

17. The case of the Private Nursing Schools and Colleges Management (supra) is not applicable to the present case because it is settled law that the things should be done in the manner it is provided. Once, the entrance examination has been done by the State Government and the criteria is fixed under the Regulations, therefore, the State Government is under obligation to follow the eligibility criteria and no relaxation can be provided to the petitioner.

18. In the present case, the State Government has adopted one mode out of two which is open for the State Government. Once they have adopted the one mode, then certainly, the procedure of criteria of selection will be followed as per the Regulations. The criteria has been followed and the admission has been done on the basis of Regulations, 2020 and the amended Regulations, 2022 without any deviation. The argument advanced by the learned counsel for the petitioner in respect of the State of Maharashtra is also not applicable in the present case.

19. Paragraph-15 of the case of Harshit Agarwal and others. Vs. Union of India and others, (2021) 2 SCC 710, is also liable to be seen in the present perspective of the case. In the said case, the Dental Council of India recommended for lowering the minimum marks and registration provided by lowering the marks. The exercise was done and the marks were lowered in accordance with Regulations but in the present case, the O.P. No.5 have followed the eligibility criteria fixed under the Regulations and there appears to be no justification to interfere in the action of the opposite parties. The judgment in the case of Harshit Agarwal (supra), is not applicable in the facts of the present case as discussed hereinabove.

20. Paragraph-15 of the case of Union of India. Vs. Federation of Self-Financed Ayurvedic Colleges, Punjab and others, (2020) 12 SCC 115, is also worth to be quoted hereinabove:-

"15. Prescribing a minimum percentile for admission to the Under Graduate courses for the year 2019-2020 was vehemently defended by the Central Council and the Union of India by submitting that the minimum standards cannot be lowered even for AYUSH courses. We agree. Doctors who are qualified in Ayurvedic, Unani and Homeopathy streams also treat patients and the lack of minimum standards of education would result in half-baked doctors being turned out of professional colleges. Non-availability of eligible candidates for admission to AYUSH Under Graduate courses cannot be a reason to lower the standards prescribed by the Central Council for admission. However, in view of admission of a large number of students to the AYUSH Under Graduate courses for the year 2019-2020 on the strength of interim orders passed by the High Courts, we direct that the students may be permitted to continue provided that they were admitted prior to the last date of admission i.e. 15-10-2019. The said direction is also applicable to students admitted to Post Graduate courses before 31-10-2019. This is a one-time exercise which is permitted in view of the peculiar circumstances. Therefore, this order shall not be treated as a precedent."

21. Supreme Court has observed that non-availability of candidates for admission to AYUSH Under Graduate Courses cannot be a reason to lower the standard prescribed by the Council for admission. However, in the said case, some relaxation was provided prior to last date of admission i.e., 15.10.2019, therefore, the Supreme Court has observed that since they were given admission prior to the end of last date of academic sessions, therefore, the candidates who were given relaxation, were protected but in the present case, the last date has already expired i.e., 31.12.2022 and this Court cannot lower the eligibility criteria.

22. In view of the aforesaid discussions, the petition lacks merit and is hereby dismissed.

No orders as to costs.

Order Date :- 6.2.2023

Rajneesh JR-PS)