Ms. Bessy Edison And Another vs Indira Gandhi National Open ...
2010 Latest Caselaw 4934 Del

              *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                          Date of decision: 26th October, 2010.

+                           W.P.(C) No.5604/2010

%

MS. BESSY EDISON AND ANOTHER                  ..... Petitioners
                  Through: Mr. Wills Mathews and Mr. D.K.
                          Tiwari, Advocates.

                                      Versus

INDIRA GANDHI NATIONAL OPEN UNIVERSITY
& ORS                                          ..... Respondents
                 Through: Mr. Sandeep Sethi, Sr. Advocate with
                          Mr. Aly Mirza and Mr. Sindhu Sinha,
                          Advocates for R-1/IGNOU.
                          Mr. Parag P. Tripathi, ASG with Mr.
                          V.S.R. Krishna and Mr. Shadan
                          Farasat, Advocates for R-2/INC.
                          Mr. R.V. Sinha and Ms. Sangita Rai,
                          Advocates for R-4.


CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may
         be allowed to see the judgment?              Yes

2.       To be referred to the reporter or not?             Yes

3.       Whether the judgment should be reported            Yes
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The two petitioners filed this petition pleading that they had in the

year 2009 and 2008 respectively completed and passed the course of Post

Basic B.Sc. in Nursing from the respondent no.1 Indira Gandhi National

Open University (IGNOU) with study centre at Safdarjung Hospital and

were awarded the Degrees therefor; that they had in July, 2010 applied for

admission to the course of M.Sc. Nursing in respondent no.4 Nightingale

Institute of Nursing; that the respondent no.4 demanded NOC of the

respondent no.2 Indian Nursing Council (INC) for confirmation of

admission of the petitioners; that the petitioners accordingly applied to INC

but INC vide its letter dated 4th August, 2010 informed the petitioners that

INC had only approved 11 study centres for Post Basic B.Sc. Nursing

Programme through distance learning by IGNOU and Safdarjung Hospital

was not included therein and thus denying registration to the petitioners for

M.Sc. Nursing Course in the respondent no.4 College. The petitioners claim

that they, thereafter approached the IGNOU which confirmed that it was

recognized for granting Degree for Post Basic B.Sc. Nursing Course and the

Degree awarded to the petitioners was valid. The petitioners averring that

they are caught between IGNOU and INC filed this petition claiming the

relief of issuance of direction to INC to approve the Post Basic B.Sc.

Nursing Course of IGNOU with study centre at Safdarjung Hospital to

enable the petitioners to pursue M.Sc. Nursing course at the respondent no.4

College.

2. Notice of the petition was issued. The counsel for IGNOU on 10 th

September, 2010 contended that the Post Basic B.Sc. Nursing Programme of

IGNOU was recognized by INC. It was further contended that while

granting the said recognition no restriction was placed that the recognition

was granted for the programme/course only with respect to a particular study

centre. The counsel for INC however contended that in pursuance to

recognition, IGNOU was required to seek approval for each study centre and

no approval for the study centre at Safdarjung Hospital was sought and thus

the course / programme conducted by IGNOU at the said study centre and

the Degree awarded therefor is not valid. In view of the said competing

claims, both IGNOU and INC were directed to file affidavits. The counsel

for IGNOU, during the hearing on 6th October, 2010, produced certain

additional documents and opportunity was given to INC to respond to the

same.

3. It is the case of IGNOU that it was the INC itself which had

approached IGNOU as far back as in the year 1988 to commence the Post

Basic B.Sc. Nursing Programme with a duration of three years through

distance education; that after compliance of various formalities, the first

batch of the course commenced in the year 1997; that between the years

1988-97, INC, at no point of time required IGNOU to have approved its

study centres where the education in the said course/programme was to be

imparted and a blanket approval had been given by INC to IGNOU. With

respect to Safdarjung Hospital it is pleaded that the same is independently

approved and recognized by INC and State Nursing Council for conducting

GNM Programme and now B.Sc. Nursing Programme; that it has been

acting as a study centre for IGNOU for B.Sc. Nursing Programme since

April, 1997; that from 1997 to 2009, 150 students had graduated from the

said centre and of which one has already completed M.Sc. Nursing and two

are in the final year of M.Sc. Nursing and three others are in the first year of

M.Sc. Nursing. It is also pleaded that two students from the centre at

Safdarjung Hospital have been awarded gold medal for securing highest

marks in the country. It is yet further pleaded that Safdarjung Hospital is

also a centre for practical training sessions of RAK College of Nursing. It is

also the plea of IGNOU that in the year 2005 the Secretary of INC was part

of the faculty of the School of Nursing, Safdarjung Hospital for the course of

Post Basic B.Sc. in Nursing being run by IGNOU. It is further the case of

IGNOU that INC in 1999 sought inspection of IGNOU programme and

IGNOU accordingly intimated the School of Nursing at Safdarjung Hospital

also of the inspection but INC for reasons best known to it did not carry out

the inspection; that in June 2000, INC again gave a blanket approval to

IGNOU to run the programme without setting out therein any list of

approved study centres. It is pleaded that in the circumstances IGNOU had

no cause, reason or justification to assume that its study centre at Safdarjung

Hospital was not approved by INC and the letter dated 4 th August, 2010

(supra) of INC came as a bolt from the blue to IGNOU also - that prior

thereto INC had never intimated to IGNOU that its study centre at

Safdarjung Hospital was not recognized. It is also informed that besides the

study centre at Safdarjung Hospital, IGNOU has 50 other study centres for

Post Basic B.Sc. Nursing Programme and no approval with respect to other

centres also had been given. IGNOU further pleads that the study centres

having been independently approved by INC and State Nursing Council, are

not required to be inspected again for the purposes of recognition as

aforesaid. IGNOU thus supports the case of the petitioners.

4. INC in its counter affidavit, with reference to the provisions of the

Indian Nursing Council Act, 1947 has pleaded that INC has been set up not

only to grant recognition of qualifications but also to decide the suitability of

individual institutions to impart training for awarding the said recognized

qualifications. It is pleaded that IGNOU has a dual role of an authority

conferring Degrees and of running its own course; that since IGNOU was to

run the Post Basic B.Sc. Nursing Programme all across the country, separate

approval/suitability from INC of each study centre was vital. It is pleaded

that no approval was granted to Safdarjung Hospital at the relevant time

when the petitioners pursued Post Basic B.Sc. Nursing Programme

therefrom. It is informed that at that time Safdarjung Hospital was having

only a School of Nursing and was not eligible to conduct graduation classes

in nursing; that only 18 centres of IGNOU were inspected and approved.

With respect to the RAK College of Nursing, it is explained that the students

thereof were pursuing their studies from RAK College of Nursing and doing

only their clinical studies from Safdarjung Hospital. It is further stated that

its Secretary who was stated by IGNOU to be a part of its study centre in

Safdarjung Hospital in the year 2005 did not seek any permission from INC

and was not expected to join the faculty of IGNOU without prior permission.

It is further contended that if the contentions of IGNOU were to be accepted,

it would lead to all study centres of IGNOU whether they have proper

teaching, clinical and infrastructural facilities or not being competent to

impart education and award Degrees and which it is contended cannot be

permitted.

5. From the additional documents filed by IGNOU it transpires that INC

only in November, 2006 directed IGNOU to have its study centres inspected

and demanded fee therefor.

6. The counsels for the petitioners and the counsel for IGNOU in their

respective submissions reiterated the aforesaid pleadings. The learned ASG

appearing for INC also relied on the judgment dated 19th December, 2007 of

the Division Bench of High Court of Punjab and Haryana in CWP

17254/2007 titled Shiv Shakti Educational Society Vs. State of Punjab.

The ASG has also contended that it was always understood by IGNOU that

its study centres were required to be approved by INC and as and when

IGNOU paid fee for inspection of the study centres, the same were

inspected. Reference is also made to Sections 10(2), 11, 12 and 13 of the

INC Act to contend that it is the obligatory function of INC to adjudge the

suitability of the institution imparting education. The counsel for IGNOU in

his rejoinder has sought to distinguish the judgment of the Division Bench of

the Punjab and Haryana High Court by contending that in the present case

there is prior approval of INC to the Degree of IGNOU and without

requiring approval of the study centres. The senior counsel subsequently

appearing for IGNOU has also argued that IGNOU has been established

under a Central enactment viz. IGNOU Act, 1985, is the largest University

in the world and the Degree is granted by the University and not by the

individual study centre. It is further urged that INC was always aware of

the Safdarjung Hospital being a study centre of IGNOU and never objected

to the same.

7. In the facts of the present case I do not feel the need to go into the

larger question of whether the recognition granted by INC to IGNOU

without specifying any study centre required approval of each of the study

centre or not. Nor is it deemed necessary to consider the larger relief

claimed of grant of approval of Post Basic B.Sc. Nursing Course of IGNOU

with study centre at Safdarjung Hospital. The matter has been considered

qua the two petitioners only. On the facts and documents it is clearly

established that in the recognition granted to IGNOU and/or in any of the

correspondence/documents of the corresponding time there is nothing to

indicate that approval of study centre was to be taken. Though the question

of inspection did come up in the year 1999 after the grant of recognition in

1997 but admittedly no inspection of any of the study centre was carried out.

The recognition certificate without any such limitation was issued in June,

2000. The question of inspection was thereafter raised only in November,

2006 and by which time the petitioners had already joined the

course/programme with the study centre at Safdarjung Hospital.

8. It thus appears that IGNOU was under a bona fide belief that it was

not required to obtain any approval for each of its study centres. IGNOU

continued to admit students to the said course/programme with study centre

at Safdarjung Hospital representing that upon successful completion of the

course/programme Degree recognized by INC will be awarded. INC also

did not take any steps to disturb the said position. The petitioners thus

joined the said course with the hope of enhancing their qualifications and

prospects in life. It also cannot be forgotten that IGNOU is not a private

enterprise which can be said to be lured by profit or other considerations into

deceiving or admitting students. The question which thus arises is as to

whether in these circumstances the petitioners should be granted relief or

not. Finding the facts and circumstances loaded in favour of the petitioners,

at one time the learned ASG was asked to take instructions on whether, even

if the stand of INC was correct, an exception could be made in favour of the

petitioners. The INC, of course, bound by its Statutes, Rules and Regulations

could not give any such consent.

9. However, this Court finds equity heavily loaded in favour of the

petitioners. The petitioners belong to the nursing profession which is an

arduous and a noble profession. It is not merely an occupation to earn a

living but a benevolent service. Nursing of the sick, said Florence

Nightingale is a vocation as well as a profession. Nurses live in the midst of

distressing atmosphere and the Tribunals/Courts cannot shut their minds to

the said reality while dealing with the issues relating to the nursing

profession. They have toiled for three years to obtain qualification of Post

Basic Graduation in Nursing and now are desirous of having post

graduation. Safdarjung Hospital wherefrom the petitioners have done their

graduation is also a large premier government hospital with thousands of

patients everyday and with most eminent persons in its faculty. No

particular fact has come on record to show that the study centre of IGNOU

at Safdarjung Hospital even if having no formal approval, was not equipped

to impart the necessary education/training to the petitioners. Nursing is a

profession with much more emphasis on practice and experience than on

theory. I find it hard to believe that the petitioners in their three years

graduation course at study centre in Safdarjung Hospital would not have

imbibed the necessary practical experience and education for graduation in

nursing. Even otherwise, the examination for conferring the Degree is held

by the University. According to INC also some of the study centres of

IGNOU and the Degree in B.Sc. Nursing of IGNOU were approved. The

examination held by IGNOU for students of the approved and unapproved

study centres was the same. The very fact that the petitioners have cleared

the said examination shows that the petitioners did not lack in any

theoretical knowledge also of the subject. The Supreme Court in Laxmi

Sharma Vs. V.C., Chhatrapati Shahuji Maharaj University (2006) 9 SCC

138 in a somewhat similar situation and where there was only an expectation

in the mind of the college authorities that permanent affiliation would be

granted to the college and which had also encouraged students to take

admission in the hope of being granted affiliation allowed the students to

take examinations even in the absence of affiliation. Even though the

judgment is not to be treated as a precedent but I find the facts of the present

case to be on a much higher pedestal. Here, there was a belief as distinct

from an expectation that the Course and the Degree are recognized.

10. The Supreme Court in State of West Bengal Vs. Committee for

Protection of Democratic Rights (2010) 3 SCC 571 reiterated that Article

226 is designedly couched in a wide language in order not to confine the

power conferred by it only to the power to issue prerogative writs but to

enable the High Courts to reach injustice wherever it is found and to mould

the relief to meet the peculiar and complicated requirements of this country.

Similarly in B.C. Chaturvedi Vs. Union of India (1995) 6 SCC 749 it was

held that the mere fact that there is no provision parallel to Article 142

relating to the High Courts can be no ground to hold that the High Courts

have not to do complete justice and if moulding of relief would

do complete justice between the parties the same cannot be ordered. To the

same effect are the judgments in FCI Vs. S.N. Nagarkar (2002) 2 SCC 475

and ESI Corporation Vs. Jardine Henderson Staff Association (2006) 6

SCC 581. Mention may also be made of A. Sudha Vs. University of Mysore

(1987) 4 SCC 537 where even though the candidate was held ineligible for

admission to MBBS Course but finding the candidate to have been justified

in relying upon the information supplied by the Principal of the Institute and

holding that in these circumstances the student ought not to be penalized,

was allowed to continue pursuing the MBBS Course.

11. The petition is therefore allowed to the aforesaid extent. The

respondent no.2 INC is directed to within 10 days hereof issue the requisite

NOC to the petitioners to enable the petitioners to gain admission for M.Sc.

Nursing. Though the NOC for the reasons aforesaid could not be submitted

by the petitioners within the time directed by the respondent no.4 but the

respondent no.4 has been represented before this Court and has not raised

any objection. The respondent no.4 is directed to admit the petitioners to

M.Sc. Nursing Course in the current academic year. It is however clarified

that nothing contained in this order shall tantamount to this Court holding

that the approval as contended by INC to be necessary of study centres of

IGNOU is not so necessary or entitle any other student of the said study

centre to any benefit from INC the relief to the petitioners having been

granted in the peculiar facts aforesaid. The petition is disposed of. No order

as to costs.

RAJIV SAHAI ENDLAW (JUDGE) 26th October, 2010 M.