B.R.School Of Nursing And Others vs Union Territory Of J&K And Other
2021 Latest Caselaw 402 j&K

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             HIGH COURT OF JAMMU AND KASHMIR
                        AT JAMMU

                                                WP(C) No.306/2021
                                                CM No.1542/2021
                                                And
                                                WP(C) No.371/2021
                                                CM No.1851/2021

                                                 Reserved on : 19.03.2021
                                               Pronounced on : 29.03.2021


1.   B.R.School of Nursing and others                                   ...Petitioner(s)


                           Through:- Mr. M.K.Bhardwaj, Sr. Advocate
                                     with Mr. Kapil Sharma, Advocate
      V/s

     Union Territory of J&K and other                                 ...Respondent(s)
                          Through:-Mr. H.A.siddiqui, Sr. AAG for R-1 to 3
                                   Mr. F.A.Natnoo, AAG for R-4 & 5

2.   Florence Nightingale School of Nusing, Kathua                      ...Petitioner(s)


                           Through:- Mr. M.K.Bhardwaj, Sr. Advocate
                                     with Mr. Kapil Sharma, Advocate
      V/s

     Union Territory of J&K and other                                 ...Respondent(s)
                          Through:-Mr. H.A.siddiqui, Sr. AAG for R-1 to 3
                                   Mr. F.A.Natnoo, AAG for R-4 & 5

Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE



                                 JUDGMENT

1. The petitioners are schools of Nursing, operating at different

place in Jammu division. They claim to have permission/recognition from

the Indian Nursing Council for imparting education in different nursing

courses/programmes including ANM/GNM courses. It is submitted that the

Jammu & Kashmir Nursing Council earlier issued notification for making

admissions of the candidates to ANM/GNM nursing courses and in the said

notification prescribed the eligibility criteria contrary to the one prescribed

under the Indian Nursing Council Act. The matter became subject matter of

adjudication in OWP No.577/2019 filed by the petitioners and other similar

situated institutions. The said writ petition was disposed of by this Court as,

in the meanwhile, the Indian Nursing Council Act, 1947 had come to be

extended to the State of J&K. The petitioners and other institutions file

another writ petition (WP(C) No.1520/2020), which was disposed of by

this Court on 14.12.2020. Be that as it may, it is contended that after

coming into force the J&K Reorganization Act, 2019, the Indian Nursing

Council Act, 1947 came to be extended to the Union Territory of J&K and

Union Territory of Ladakh and admissions to the Institutes like the

petitioners were provided to be made in accordance with the Indian

Nursing Council norms. Admissions to various government and private

Nursing Institutes was, after the extension of Indian Nursing Council Act,

were provided to be made by a centre like agency i.e. J&K Board of

Professional Entrance Examination (JKBOPEE). JKBOPEE vide its

notification dated 19.09.2020 invited online applications for appearing in

the common entrance test for admission to the 12 th based para medical

courses for academic session 2020. Last date for submission of online

application forms was 08.10.2020, which was later extended, firstly, to

13.10.2020 and secondly, to 17.10.2020. It is submitted that due to lesser

time granted by the BOPEE and COVID-19 restrictions, very few

candidates could respond to the admission notification issued by the

BOPEE and accordingly, all eligible candidates, who had submitted their

online applications were accommodated and admitted in the government

institutes, generally the first preference of the candidates seeking admission

to such courses. It is submitted that due to the aforesaid reason, no

candidate was available with the BOPEE for admission to the petitioners-

Institutes. They claim that that they have invested their hard earned money

in establishing the Institutes and in case the students are not admitted, it

would cause huge loss to the petitioners and, in that, they would be

deprived of their only source of livelihood. The petitioners have also

pleaded in support of the candidates, who are desirous of seeking

admission in institutes of the petitioners but because they could not apply

to JKBOPEE in time, they had been deprived of such chance.

2. It is in the backdrop of aforesaid fact situation narrated by the

petitioners, the petitioners have sought indulgence of this Court to direct

the respondents to allow the petitioners to make admission on their own, as

per their sanctioned intake capacity, so that the left over students are

accommodated and their institutes are also rendered viable.

3. The plea of the petitioners, noted above, has been resisted by

Mr. Siddiqui, learned Senior Additional Advocate General, appearing for

respondent Nos.1 to 3. He submits that as per SRO 505 of 2019 dated

20.08.2019, admission to all para medical courses including GNM/ANM

courses is required to be made through JKBOPEE and, therefore, it is not

in the province of the respondents Nos. 1 to 3 to permit the petitioners-

Institutes to make admission of their own. To the similar fact is submission

of Mr. F.A.Natnoo, AAG, representing respondent Nos. 4 & 5. He submits

that the JKBOPEE had given ample opportunity to the candidates to submit

online applications and whatever applications received by the BOPEE were

considered and the eligible candidates, as per their preference and choice,

were allotted the institutes and the admission process is over. He, however,

opposed the prayer of the petitioners that BOPEE should issue fresh

notification inviting online applications for admission to ANM/GNM

courses so that the eligible candidates for admission are accommodated in

the petitioners-Institutes.

4. Having heard learned counsel for the parties and perused the

record, I am of the view that no right is vested in the petitioners-Institutes

to claim that the BOPEE should issue fresh notification inviting

applications for admission to ANM/GNM courses only because the

candidates, who had responded to the notifications of the BOPEE dated

19.09.2020 had not made a choice of the petitioners-Institutes and were

thus, accommodated in the government institutes, as per their

preference/choice. I am also not in agreement with the learned counsel for

the petitioners that the BOPEE had not given adequate opportunity to the

candidates to respond to the notification. The notification was issued on

19.09.2020 and last date for submission of online applications was fixed

08.10.2020, which was further extended to 17.10.2020. Almost a month's

time was given to the candidates to apply online. Since applications were to

be submitted online, therefore, the COVID-19 restrictions could not have

caused any hindrance in submission of the application forms. The

petitioners-Institutes, as is apparent from the facts brought on record, could

not be accommodated because of poor response of the candidates seeking

admission in ANM/GNM courses.

5. Having said that, I am of the view that the grievance of the

petitioners can still be considered by respondent No.1 taking into

consideration the following factors:-

i) That the petitioners-Institutes are recognized by the Indian Nursing

Council and have necessary infrastructure to conduct the courses of

ANM/GNM.

ii) That the petitioners-Institutes could not be accommodated by the

BOPEE by making admissions to their Institutes due to poor

response from the candidates seeking admission in GNM/ANM

courses.

iii) That the admission process is yet not finalized and the last

counseling is yet to take place.

iv) The classes of the candidates admitted to GNM/ANM courses have

yet not commenced.

v) That under similar set of circumstances in the case of admission in

the polytechnic, the Government in the Department of Skill

Development showed indulgence and vide its communication

No.DSD/Poly/36/2020 dated 28.10.2020 addressed to the Director,

Skill Development Department, permitted the Polytechnic Institutes

to make admission at their own level against the left over seats for

the session 2020-21 after the first counseling of the applicants is over

providing further that there shall be no change in eligibility criteria

presently in-vogue.

6. In view of the aforesaid, though, finding no merit in the pleas

of the petitioners and acting purely on equitable considerations, these writ

petitions are disposed of by directing respondent No.1 to consider the

grievance of the petitioners, as projected in these petitions, in light of

factors enumerated herein above and pass appropriate orders within a

period of two weeks from the date a copy of this judgment is served upon

him. Respondent No.1 shall do well to take a decision in the matter on the

analogy of the department of Skill Development, which has, in the similar

set of circumstances, permitted the Polytechnic Institutes to admit the

students at their own level subject to the candidates meeting the eligibility

criteria. This would not only save the Institutes from being rendered

unviable but it would also provide an opportunity to the candidates to

acquire qualification of ANM/GNM. It is, however, left to the wisdom and

good conscience of the respondents to act in the matter.

(Sanjeev Kumar) Judge

Srinagar.

29.03.2021 Vinod.

Whether the order is speaking : Yes/No Whether the order is reportable: Yes/No

VINOD KUMAR 2021.03.29 18:02 I attest to the accuracy and integrity of this document