Divya College Of Nursing vs The State Of Andhra Pradesh, Rep By ...
2021 Latest Caselaw 1259 AP

            HON'BLE SMT. JUSTICE KONGARA VIJAYA LAKSHMI

            Writ Petition Nos.34343 of 2014 & 36786 of 2016

COMMON ORDER:


      As the issue involved in both the writ petitions is interconnected,

with the consent of the learned counsel for the petitioners, learned

Government Pleader for Medical & Health, learned standing counsel for

the University and the learned Assistant Solicitor General, both the writ

petitions are being disposed of by this common order.


      i)      WP No.34343 of 2014 - This writ petition is filed "to declare the
              action of the 3rd respondent in issuing proceedings dated

11.11.2014 and deleting the college of the petitioner by the 2nd respondent-University in web site from the list of Colleges of Nursing for B.Sc., (N) Course to admit students for the academic year 2014-15, as illegal and arbitrary and consequently to set aside the proceedings of the 3rd respondent dated 11.11.2014 by directing respondents 2 and 3 to include the petitioner's college in the counselling process to be held on 14.11.2014 and 15.11.2014 by permitting the petitioner's college to admit the students in the course of B.Sc. (N) for the academic year of 2014-15."

ii) WP No.36786 of 2016 - This writ petition is filed "to declare the action of the 2nd respondent-University in not permitting the petitioners to appear for the 1st & 2nd year B.Sc., (Nursing) examinations (Supplementary and Regular) scheduled to be held on 01.11.2016 by issuing the hall tickets, as illegal and arbitrary."

2. WP No.34343 of 2014 is filed by the Nursing College and their

case is that Government of Andhra Pradesh gave essentiality certificate

to college vide G.O.Ms.No.109, Health, Medical and Family Welfare (K2)

Department, dated 12.04.2006; thereafter, Indian Nursing Council gave

approval to the course B.Sc., (N) and Dr.NTR University of Health

Sciences gave affiliation for the academic year 2013-14 and 2014-15 and

KVL, J WP Nos. 34343 of 2014 & 36786 of 2016

vide proceedings dated 01.11.2014 and permitted the college to admit

the students; but on 11.11.2014, the 3rd respondent kept the affiliation

which was given to the petitioner-college on 01.11.2014 in abeyance, as

the Indian Nursing Council has deleted the name of the college from the

web site of the colleges on 10.11.2014 and the University directed the

petitioner not to make any admissions for the year 2014-15. Challenging

the said proceedings dated 11.11.2014, present writ petition is filed.

3. When the said writ petition came up for admission on

13.11.2014, the said proceedings dated 11.11.2014 are suspended and

included the petitioner-college in counselling; when the University

announced the schedule of examination for the year 2015 and refused to

accept the examination fee from the students, they filed WP MP

No.38339 of 2015 in WP No.34343 of 2014 seeking a direction to the

University to accept the examination fee; the said WP MP was dismissed

on 28.09.2015; WA No.925 of 2015 was filed challenging the said order

and in the writ appeal, the Division Bench of this Court directed the

learned single Judge to consider the application; pursuant to the said

directions, petitioners appeared for the examination; WP MP No.9241 of

2016 was also filed seeking a direction to declare the results and the WP

MP was allowed accordingly and the results were declared; again

notification was issued for regular examination to be conducted from

01.11.2016 to 17.11.2016 and as the University is not accepting the fee

due to pendency of WP No.34343 of 2014, WP No.36786 of 2016 was filed

by the students.

4. Counter-affidavit is filed by the 3rd respondent-Indian Nursing

Council in the year 2018 stating inter-alia that the 4th respondent-

college is not a permitted institution and is not inspected since 2014 and

KVL, J WP Nos. 34343 of 2014 & 36786 of 2016

that it is the statutory authority authorized under the Indian Nursing

Council, to regulate the nursing profession across India and prays for

dismissal of the writ petition.

5. During the pendency of these two writ petitions, various WP

MPs were filed for accepting the examination fee from the students and

to allow them to write examinations.

6. Today, when the matter came up for hearing, Sri B Mayur

Reddy, learned counsel for the petitioners submits that the similar issue

came up for consideration before the Hon'ble Supreme Court and that

the Hon'ble Supreme Court observed that 'Indian Nursing Council does

not have power to grant recognition to the nursing courses'.

7. W.P.Nos.25355-57 of 2017 and batch, dated 24.07.2017. The

said batch were filed before the High Court of Karnataka to declare that

the Indian Nursing Council has no authority to grant recognition to the

Institutions imparting nursing course such as Bachelor of Nursing etc.,

and a consequential direction was sought to restrain the Indian Nursing

Council from publishing on its website, materials indicating that the

institutions imparting Nursing course have to obtain recognition from the

Indian Nursing Council and a further direction was also sought to direct

the Indian Nursing Council to remove forthwith all such materials from

their website which indicate that the institutions imparting nursing

courses have to obtain recognition from the Indian Nursing Council. The

said batch of Writ Petitions were allowed and it was declared that the

Indian Nursing Council has no authority to grant recognition to the

Institutions imparting Nursing courses and it was also restrained from

publishing on its website, materials indicating that the institutions

imparting Nursing courses have to obtain recognition from the Indian

KVL, J WP Nos. 34343 of 2014 & 36786 of 2016

Nursing Council and all such materials from which it could infer

recognition is to be obtained from Indian Nursing Council stand

withdrawn from its website forthwith.

8. Against the said judgment, Writ Appeal was filed before the

Division Bench and the Division Bench granted stay of the second part of

the learned single Judge's order and when the matter is preferred

before the Hon'ble Supreme Court in Civil Appeal Nos.12759-12761 of

2017 wherein the Hon'ble Supreme Court held as follows:

"We are of the view that the two parts of the learned single Judge's order are inextricably inter connected. Once it is declared that the Indian Nursing Council, Respondent No.2 has no authority to grant recognition to the Institutions imparting Nursing course, it must follow that the Respondent No.2 is, therefore, restrained from publishing on its website, the material that are indicated. We are, therefore, of the view that the interim order passed by the Division Bench must be set aside the order of the learned Judge restored."

9. As seen from the above judgment, learned Single Judge of the

High Court of Karnataka has declared that the Indian Nursing Council has

no authority to grant recognition to the institutions imparting nursing

courses. The said finding has been approved by the Hon'ble Supreme

Court. The learned counsel for the petitioner submits that the said

judgment is applicable both prospectively and retrospectively and relies

on judgment of the Hon'ble Supreme Court in 'M.A. Murthy vs. State of

Karnataka & others1', wherein, it was held as follows:

"...It is for this Court to indicate as to whether the decision in question will operate prospectively. In other words, there shall be no prospective over-ruling, unless it is so indicate in the particular decision. It is not open to be held that the decision in a particular case will be prospective in its application by application of the doctrine of prospective over-ruling."

AIR 2003 SC 3821

KVL, J WP Nos. 34343 of 2014 & 36786 of 2016

As nothing is said in the said judgment with regard to the operation of

the judgment, the same has to be construed that it operates

retrospectively.

10. Sri G. Vijay Kumar, learned standing counsel appearing for the

Dr. NTR University of Health Sciences, submits that the University is

ready to declare the results of the students, who appeared for the

examination in view of the judgment of the Hon'ble Supreme Court.

11. So far as WP No.34343 of 2014 is concerned, learned counsel

for the petitioner submits that the petitioner-College will submit

themselves for fresh inspection to the State Nursing Council and the

University and that basing on the inspection, the University and the

State Nursing Council may be directed to take appropriate decision in

the matter.

12. Ms. Alekya, learned counsel representing Sri N. Harinath,

learned Assistant Solicitor General of India submits that in view of the

judgment of the Hon'ble Supreme Court, the Indian Nursing Council does

not have any say with regard to grant of recognition to the petitioner-

institution.

13. In the facts and circumstances of the case, WP No.36786 of

2016 is allowed directing the 2nd respondent-University to declare the

results of the candidates who appeared for the 4th year examination and

consequently to issue provisional certificates. WP No.34343 of 2014 is

also allowed setting aside proceedings dated 11.11.2014 of the 3rd

respondent-University. However, it is made clear that the petitioner-

college has to subject itself for fresh inspection to the State Nursing

Council and the University. No order as to costs. Consequently,

KVL, J WP Nos. 34343 of 2014 & 36786 of 2016

miscellaneous petitions, if any pending, in both the writ petitions, shall

stand closed.

________________________ KONGARA VIJAYA LAKSHMI, J Date: 02.03.2021 Note: Furnish CC in one week.

(BO) BSS

KVL, J WP Nos. 34343 of 2014 & 36786 of 2016

HON'BLE SMT JUSTICE KONGARA VIJAYA LAKSHMI

Writ Petition Noa.36786 of 2016 & 34343 of 2014

URGENT

Date: 02.03.2021

BSS