Soumen Dey vs State Of West Bengal And Others
2021 Latest Caselaw 2526 Cal

   12
06.04.2021
 TN

                                     WPA 4069 of 2021

                                    (Via video conference)

                                         Soumen Dey
                                             Vs.
                               State of West Bengal and others


                   Mr. Indranil Nandi,
                   Mr. Manoranjan Maiti,
                   Mr. Sayak Konar

                                                     ... for the petitioner

                   Mr. Swapan Kr. Datta,
                   Mr. Tapas Kr. Mandal
                                                         .... for the State

                   Mr. Nilotpal Chatterjee

                                      .... for the Indian Nursing Council




                   Learned counsel for the petitioner argues that,

             despite having passed out from a recognized Nursing

             University in Karnataka and having obtained registration

             under the Karnataka Nursing Council, the respondent-

authorities are refusing to grant reciprocal registration to

the petitioner.

Learned counsel submits that, although Clause 7 of

the Examination Regulations issued by the Indian

Nursing Council stipulate that the minimum pass marks

shall be 50 per cent in each of the theory and practical

papers separately, several communications were made by

the Indian Nursing Council to the West Bengal Nursing

Council requesting the latter to consider sympathetically

the applications for reciprocal registration from

applicants who had secured less than the said pass

marks independently in the theory and practical papers.

Learned counsel submits that although the

Regulations have not yet been changed, the said

communications of the Indian Nursing Council ought to

have a binding effect on the West Bengal Nursing Council

as well.

Learned counsel for the Indian Nursing Council

(INC for short) submits that the West Bengal Nursing

Council ought to have followed the communications made

by the Indian Nursing Council and at least to have

considered sympathetically the application of the

petitioner, instead of refusing to accept the same at the

outset, although the requests were general in nature and

not specific directions. However, it is candidly submitted

that the Guidelines still remain the same in force insofar

as the minimum pass marks in each of the theory and

practical papers are concerned.

Learned counsel for respondent nos.2 and 3 argues

that the communications relied on by the petitioner are

themselves contrary to the Guidelines of the INC itself. It

is argued that the West Bengal Nursing Council has only

been following the Guidelines of the INC and cannot be

faulted for doing so. Learned counsel for the respondent

nos.2 and 3 further places reliance on the

communications by the INC, particularly the one dated

April 2, 2019 annexed at page 20 of the affidavit-in-

opposition, wherein the INC itself admitted that the

University from where the applicants had passed out are

not following the guidelines laid down by the INC. It was

further stated in the letter that the Council either have

issued or will be issuing letters to the concerned

Universities for the future compliance of its Guidelines in

order to have uniformity across the country.

It is thus submitted that the INC itself abides by

and stands by its own Rules by indicating in its

communications that appropriate instructions would be

issued to the Universities-in-question which are not

complying with their guidelines. As such, it is submitted

that there is no illegality on the part of the West Bengal

Nursing Council in refusing to accept the application of

the petitioner.

While making his submissions, learned counsel for

the petitioner relies on a Division Bench judgment of this

court, reported at 2018(1) CHN (Cal) 345 [Sonali Nandi vs.

West Bengal Nursing Council] for the proposition that, if a

candidate passed out the B.Sc Nursing Course from a

recognized university, the non-compliance of certain

technical qualifications required for stages prior to such

passing out could not be relevant for considering

registration. It is seen from the said judgment, that the

facts thereof were somewhat different from the present

case. In the said report, the Division Bench clearly stated

that a qualification which had to be looked into prior to

admitting the student in the nursing courses itself, could

not be relevant after she/he passed out, at the stage of

registration.

However, the distinction lies in the fact that, in the

present case, the West Bengal Nursing Council is seeking

to rely on the minimum criteria for registration itself and

not pre-admission criteria, for refusing to accept the

application.

Considering the submissions of learned counsel

and the materials on record, Clause 7 of the Examination

Regulations issued by the Nursing Council clearly

stipulates that minimum pass marks shall be 50 per cent

in each of the theory and practical papers separately.

However, there appears to be some anomaly

inasmuch as in the immediately preceding Clause (no. 6),

the minimum pass marks were stipulated as 40 per cent

for the subject English only.

A combined reading of all the Clauses of the

Examination Regulations may leave scope for a liberal

interpretation of Clause 7, since the petitioner has

crossed all the other hurdles for qualifying to be

registered as a nurse.

That apart, although the Indian Nursing Council

reiterated time and again that they will be or have issued

appropriate instructions to the Universities not following

the Guidelines to bring uniformity, the Indian Nursing

Council itself, in the said communications, specifically

requested the West Bengal Nursing Council to take such

technical hurdles as an exception to the Guidelines set by

the Indian Nursing Council.

Insofar as the argument that such requests are

contrary to the Guidelines of the Indian Nursing Council

itself is concerned, I am of the opinion that the

communications reveal the own interpretation of the

Indian Nursing Council regarding the guidelines issued

by itself. As such, there is no reason why the said

"exception" cannot tantamount to a temporary relaxation

of Clause 7 of the guidelines and/or other Clauses, if the

candidates qualify on all the other yardsticks.

That apart, it is cruel to refuse reciprocal

registration, thereby questioning the qualifications of an

already registered nurse in a different State. It is

somewhat doubtful as to whether reciprocal registration

could be refused, after such registration was granted by

the Karnataka University in the present case, and in the

light of the specific relaxation carved out by the Indian

Nursing Council in its repeated communications. Since

the fate of the nursing candidates is in question, even

keeping in mind that merits ought not to be

compromised, it ex facie appears that the present

petitioner qualified on all other scores than securing 50

per cent in each of the theory and practical papers

separately. As such, it was improper and inappropriate

for the West Bengal Nursing Council to flout the

directions of relaxation of standards issued by the parent

concern, that is, the Indian Nursing Council in not even

considering the request of the petitioner.

As such, WPA 4069 of 2021 is disposed of by

directing respondent nos.2 and 3 to reconsider the

application for reciprocal registration made by the

petitioner sympathetically on merits, upon giving an

opportunity to the petitioner to produce other relevant

documents, if any, to substantiate his claim. Such

reconsideration shall be completed by the West Bengal

Nursing Council, upon giving appropriate prior notice of

hearing to the petitioner sufficiently in advance, positively

within May 15, 2021.

The impugned refusal of the respondent nos.2 and

3 to accept the application for reciprocal registration of

the petitioner at the outset is hereby set aside. The

respondent nos.2 and 3 shall now reconsider the said

application on merits in the light of the observations

made above.

It is made clear that this order will not be treated

as a precedent and is passed in respect of the present

petitioner alone.

There will be no order as to costs.

The parties shall act on the communication by

learned counsel for the parties and/or the server copy of

this order, without insisting upon prior production of a

certified copy.

Urgent photostat certified copies of this order, if

applied for, be made available to the parties upon

compliance with the requisite formalities.

(Sabyasachi Bhattacharyya, J.)