Bhavani Sevabhavi Sanstha ... vs The State Of Maharashtra And ...
2016 Latest Caselaw 3850 Bom

                                                             8644.2015WP.odt
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                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY 
                              BENCH AT AURANGABAD




                                               
                             WRIT PETITION NO.8644 OF 2015 

              Bhavani Sevabhavi Sanstha,  




                                              
              Parbhani, Through its President,  
              Pratap s/o. Bhaskarrao Deshmukh,  
              Age 45 Years, Occ. Agri.  
              R/o. Kranti Chowk, Parbhani,  
              Tal. & District Parbhani.          PETITIONER




                                       
                               VERSUS
                             
              1.       The State of Maharashtra,  
                       Through its Secretary,  
                            
                       Medical Education and Drugs
                       Department, Mantralaya,  
                       Mumbai.  

              2.       The Director of Medical Education 
      


                       and Research, Government Dental 
                       College and Hospital Building,  
   



                       St. George's Hospital Compound,  
                       Mumbai - 400 001.  
                       And Youth Services,  
                       Maharashtra State, Pune 





              3.       Maharashtra University of Health 
                       Sciences, Nashik 
                       Through its Registrar 





              4.   The Maharashtra Nursing Council,  
                   Mumbai, through its Registrar.  
                                                     RESPONDENTS 
                                        ...
              Mr.V.D.Salunke, Advocate for the Petitioner 
              Mr.S.D.Kaldate, AGP for Respondent Nos.1 & 2 
              Mr.C.A.Jadhav,   Advocate   for   Respondent   Nos.3 
              and 4.      
                                     ...




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                                                                       8644.2015WP.odt
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                              CORAM:  S.S.SHINDE & 




                                                       
                                      SANGITRAO S.PATIL,JJ. 

Reserved on : 29.06.2016 Pronounced on : 15.07.2016

JUDGMENT: (Per S.S.Shinde, J.):

Heard.

2.

Rule. Rule made returnable

forthwith, and heard finally with the consent

of the parties.

3. The background facts leading for

filing this Petition as disclosed in the memo

of Petition are as under:

It is the case of the petitioner

that with a view to provide better education

to the needy students at Parbhani and with a

view to start B.Sc. Nursing College at

Parbhani as per the relevant guidelines

prevailing at that time, the petitioner had

submitted a proposal to start B.Sc. Nursing

College for the academic year 2011-2012 on

8644.2015WP.odt

30.10.2010, along with all the necessary

documents and the fees. The check list which

is annexed to the proposal clearly

demonstrates that what were the facilities

available with the petitioner, and the check

list provided by the University at that time

i.e. for the academic year 2011-2012 was

showing compliance on the part of the

petitioner.

4. It is further the case of the

petitioner that as per Section 64 of the

Maharashtra Health Universities Act, 1998,

the petitioner had submitted a proposal to

start B.Sc. Nursing Course on 30.10.2010

along with all the necessary documents. As

per clause 7 of the prescribed form provided

by the Health University, there was an option

to have own or attached Hospital and note was

given in the said application form itself

that (1) in case of attached hospital (s),

attach a memorandum of understanding between

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the trust and owner of the Hospital (s) on a

stamp paper of Rs.100/- (each) duly

notarized, at least for a duration of five

years. Since the petitioner was having

attached hospitals, it annexed with the

proposal the affidavits on stamp papers of

Rs.100/- of Ankur Bal Rugnalaya and Godawari

Maternity and Nursing Home. As such, the

petitioner fulfilled all the criteria to

start the B.Sc. Nursing Course.

5. It is further the case of the

petitioner that the University pointed out

the following three deficiencies vide letter

dated 27.12.2010 and because of that did not

recommend the proposal of the petitioner.

1) Own 3 acres land or 54000 sq.ft. construction as per INC norms is not available. The 9.12 acres land shown by the trust belongs to the President of the trust. Registered sale deed of land is not available.

8644.2015WP.odt

2) College and Hostel building plan is not as per INC norms.

3) Audited statement for the financial year 2009-2010 is not available.

6. It is further the case of the

petitioner that in response to the letter

dated 27.12.2010 of the University, the

petitioner, vide letter dated 19.01.2011,

informed the Registrar of the University

that the petitioner had complied with all the

three deficiencies which were pointed out by

the University. It was specifically stated

that the petitioner purchased 5 acres of land

and a registered sale deed was also placed on

record. The building plan was as per the

norms of INC as well as audit report of the

Year 2009-2010 also were placed on record.

7. It is further the case of the

petitioner that as the petitioner had

complied with the deficiencies which were

8644.2015WP.odt

pointed out and therefore, the Desk Officer

has directed to submit fees for the scrutiny

of the proposal and in pursuant thereto, that

amount was paid by the petitioner. It is

further the case of the petitioner that as

the petitioner had submitted requisite fees

and therefore, respondent no.2 Director of

the Medical Education and Research, Mumbai,

appointed three members Committee to verify

the infrastructure for granting suitability

certificate to the petitioner. Three members

on the said Committee comprising

Dr.M.M.Doiphode, Mr.S.S.Batule and Smt.

Panchashila Jawale directed the Committee

to submit a report as per the Government

policy.

8. It is further the case of the

petitioner that as the Committee was

appointed, the Committee inspected the

infrastructure available with the petitioner

Institution and submitted a report in the

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meanwhile, the petitioner was directed to pay

the fees by the University and in pursuant

thereof, the petitioner submitted

revalidation fees up to 2014-2015. It is

submitted that as after verification of the

infrastructure available with the petitioner

institution, the report was submitted by the

Committee but as that was confidential

report, the same was not made available to

the petitioner Institution. Pursuant to the

Committee report, respondent no.2 forwarded

the proposal of the petitioner to respondent

no.1 and it was specifically stated that the

petitioner institution has complied with the

deficiencies and it was specifically stated

that the petitioner institution is Competent

to run the B.Sc. Nursing Course.

9. The learned counsel for the

petitioner submits that the petitioner's

request for issuing Essentiality Certificate

is turned down by respondent no.1 on the

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ground that the petitioner has no 100 bedded

parent Hospital. It is submitted that the

said letter is written on the basis of the

letter received by respondent no.1 from the

Indian Nursing Council by observing that

there is need of 100 bedded parent Hospital.

In fact, if the contents of the said letter

are perused, it is revealed that the said

requirement was for the academic year

2015-16. It is submitted that the

petitioner's proposal is of the academic year

2011-12, and thereafter, the same was pending

at the Government level. The petitioner's

proposal ought to have been considered on the

basis of the conditions laid down in the

application form for the academic year

2011-12 issued by the Maharashtra University

of Health Sciences, Nashik. It is submitted

that in the said application form, it is

mentioned that in case of attached hospital

(s), attach a Memorandum of Understanding

8644.2015WP.odt

between the Trust and owner of the Hospital

(s) on stamp paper of Rs.100/- (each) duly

notarized at least for five years. It is

further mentioned that there should be own

running Hospital of the applicant's society /

Trust for Medical, Ayurved, Unani and

Homeopathy faculties. It is submitted that

in order to comply with the notes given in

the said application, the petitioner entered

into Memorandum of Understanding with the

Hospital run by Dr.Chetan Kalyanrao Mokashe

wherein the permission was granted by the

said Hospital to the petitioner to utilize

the Hospital for nursing students to perform

practicals. It is submitted that the said

Hospital is 50 bedded. The petitioner has

also entered into an agreement with the

Godavari Hospital, Parbhani, having 50 bed by

executing a Memorandum of Understanding that

the said Hospital will allow the students of

the petitioner to perform practicals. The

8644.2015WP.odt

sum and substance of the arguments of the

learned counsel for the petitioner is that

when the Directorate of Medical Education and

Research, Mumbai, by a letter dated 10th

January, 2014 recommended the case of the

petitioner observing that all the

deficiencies have been cured by the

petitioner and the petitioner has ability to

run the nursing course, respondent no.1

should not have given altogether different

reasons while refusing Essentiality

Certificate, which were not indicated to the

petitioner either by respondent no.2 or by

the Director of Medical and Research

Education, Mumbai. It is submitted that as

and when the Pharmacy Council of India may

have occasion to examine the proposal of the

petitioner, that time the Indian Nursing

Council may look into the guidelines /

requirements laid down by the said Council.

Therefore, the learned counsel for the

8644.2015WP.odt

petitioner submits that the Petition may be

allowed.

10. The learned AGP appearing for

respondent no. 1 relying upon the averments

in the affidavit-in-reply submits that the

Indian Nursing Council is a Apex Body to

consider the proposal received to it along

with respective Government order or NOC to

grant permission to start New Nursing Course.

As per the guidelines and minimum

requirements to establish B.Sc. (N) College

of Nursing, it is necessary to have 100

bedded Parent (own) Hospital to become

eligible to establish B.Sc. (N) course.

11. We have heard the learned counsel

appearing for the petitioner, the learned AGP

appearing for respondent nos.1 and 2 - State

and the learned counsel appearing for

respondent nos.3 and 4. With their able

assistance, perused the pleadings in the

8644.2015WP.odt

Petition, grounds taken therein, annexures

thereto and affidavit-in-reply filed by

respondent no.1. Upon careful perusal of the

contents of the letter written by the

Director, Directorate of Medical Education

and Research, Mumbai, to respondent no.1

Department. It is abundantly clear that the

said authorities stated in the said letter

that the petitioner has cured all the

deficiencies / shortcomings and has the

ability to establish and run B.Sc. Nursing

course. The relevant contents of the letter

dated 10th January, 2014, [Exhibit-G Page-48],

read thus:

"यासतव शासनास कळिवणयात येते की, सादर संसथेने संदभभ क 3 चया शासन पतात नमूद केलेतया तुटीची पूतभता करन

ं ालनालयास सादर केलेले आहे. (सोबत पत) या सच शासनास कळिवणयात येते की, संबध ं ीत संसथेकडू न तुटीची पूतभता करणयात आलेली असून सदर संसथा सकम आहे असे ं ालनालयाचे अिभपाय आहेत. (सद या सच ं भभ क. 2 चया पतांची छायांिकत पत व 5 सोबत जोडणयात आलेले आहे).

8644.2015WP.odt

It is not in dispute that the said

Authority is a competent authority in the

field and the observations in the said letter

are based upon the office record.

12. Upon careful perusal of the copy of

the application submitted by the petitioner

to the Registrar, Maharashtra University of

Health Sciences, Nashik, it appears that to

submit proposal to open new College or

Institute the applicant is required to submit

application in four copies of prescribed

format. It appears that the said format is

provided for submitting the proposal for

opening new College or Institute for the

academic year 2011-12. It is not in dispute

that the petitioner's proposal / application

for opening new Nursing College at Parbhani

was for the academic year 2011-12. In the

said application form after clause 7, there

is foot note, which reads thus:

8644.2015WP.odt

1) In case of attached hospital (s),

attach a Memorandum of Understanding between the Trust and owner of the hospital (s) on stamp paper of Rs.100/-

(each) duly notarized at least for five years.

2) There should be own running hospital of

the applicant's Society / Trust for

Medical, Ayurved, Unani & Homoeopathy faculties.

Therefore, the petitioner's

application / proposal for the academic year

2011-12 proceeded further on the basis of the

requirement as stated in the format of the

said application. It is also not in dispute

that the petitioner removed / cured

deficiencies pointed out by respondent no.2

and also respondent no.3 and thereafter

respondent no.2 sent a letter to respondent

no.1 stating therein that all the

deficiencies / shortcomings have been cured

by the petitioner and the petitioner has

8644.2015WP.odt

ability to establish College at Parbhani.

Upon perusal of the copies of documents

placed on record, it also appears that the

petitioner entered into the Memorandum of

Understanding with two Hospitals at Parbhani

having 50 beds. Those Hospitals agreed to

allow the students to use the said Hospitals

for the purpose of practicals. As rightly

contended by the learned counsel for the

petitioner that as and when the proposal will

reach to respondent no.4, respondent no.4

will look into the procedure / guidelines /

rules and then only take appropriate

decision. However, there was no reason for

respondent no. 1 to refuse Essentiality

Certificate.

13. Therefore, in the light of

discussion in the foregoing paragraphs, in

our opinion, respondent no.1 should not have

refused to issue Essentiality Certificate on

the ground that the petitioner does not

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possess 100 bedded parent hospital. It

further appears that the reasons mentioned by

respondent no.1 in the impugned communication

is relying upon the instructions issued by

the Indian Nursing Council for the academic

year 2015-16.

14.

In that view of the matter, the

impugned communication is quashed and set

aside. Respondent no.1 is directed to

reconsider the issue of issuance of

Essentiality Certificate keeping in view the

communication dated 10th January, 2014, issued

by the Director, Directorate of Medical

Education and Research, Mumbai, and also

keeping in view the fact that the proposal of

the petitioner was for the academic year

2011-12 and format of application issued by

the Maharashtra University of Health

Sciences, Nashik, has been fulfilled by the

petitioner, however, without raising the

8644.2015WP.odt

ground that the petitioner has no 100 beds

parent Hospital, as expeditiously as

possible, however, within 5 weeks from today.

15. Rule made absolute in the above

terms. The Writ Petition stands disposed of

accordingly. The parties shall act upon

authenticated copy of this order.

16. The learned AGP undertakes to

communicate this order through the Government

Pleader's office to respondent no.1.

                       Sd/-                     Sd/-
               [SANGITRAO S.PATIL]          [S.S.SHINDE]
                     JUDGE                     JUDGE  





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