Madhya Pradesh High Court
Christian Medical Association Of ... vs The State Of Madhya Pradesh on 11 January, 2022
Author: Vivek Rusia
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HIGH COURT OF MADHYA PRADESH : BENCH AT
INDORE
(DB: HON. Mr. JUSTICE VIVEK RUSIA & HON. Mr. RAJENDRA
KUMAR (VERMA)
Writ Petition No.25335/2021
1 Christian Medical Association of
India Having its registered office at
A-3 Shopping Centre, Janakpuri,
New Delhi through its Secretary
2 M.I.B.E. Graduate School for
Nurses Having its registered office PETITIONERS
at Christian Hospital Campus
Sanyongita Ganj Indore through its
Principal Mrs. Shimy Mathew D/o
Mr. M.D. Mathew aged about 43
years, Working as
Principal/Secretary R/o Sanyongita
Ganj Indore
Versus
1 The State of Madhya Pradesh
through its Principal Secretary
Department of Medical Education
6th Floor Satpuda Bhawan, Bhopal
2 Madhya Pradesh Nurses
Registration Council through its RESPONDENTS
Registrar,
No.12, Comantika Parisar, 3rd Floor,
Bhadbhada Road, Bhopal, M.P.
462003
3 Madhya Pradesh Medical Science
University through its Registrar,
Madhya Pradesh Ayurvigyan
Vishwavidyalya, Medical College
Campus Jabalpur, M.P.
*****
CONC. No.2618/2021
1 Christian Medical Association of
India Having its registered office at
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A-3 Shopping Centre, Janakpuri,
New Delhi through its Secretary
2 M.I.B.E. Graduate School for
Nurses Having its registered office PETITIONERS
at Christian Hospital Campus
Sanyongita Ganj Indore through its
Principal Mrs. Shimy Mathew D/o
Mr. M.D. Mathew aged about 43
years, Working as
Principal/Secretary R/o Sanyongita
Ganj Indore
Versus
1 Shri Akash Tripathi Working as
Principal Secretary Department of
Medical Education 6th Floor Satpuda
Bhawan, Bhopal, M.P.
2 Smt. Sunita Shiju Working as
Registrar No.12, Gomantika Parisar, RESPONDENTS
3rd Floor Bhadbhada Road, Bhopal,
M.P.
3 Dr. Prabhat Kumar Budholia
Working as Registrar, Madhya
Pradesh Ayurvigyan
Vishwavidyalaya Medical college
Campus, Jabalpur, M.P.482003.
*****
Shri Brien Dsilva, learned Senior Advocate alongwith Ms.
Seema Sharma, learned counsel for the petitioner.
Shri Shrey Raj Saxena, learned counsel for the respondent
No.1./State.
Ms. Mini Ravindran, learned counsel for the Respondent No.2.
Shri Sunil Jain, learned Senior Advocate, alongwith Rishi
Paliwal, learned counsel for the Respondent [R-3].
ORDER
(11.01.2022)
Per VIVEK RUSIA, J: -
With the consent of parties, Writ Petition is heard finally
through Video Conferencing.
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The petitioners have filed this present petition being aggrieved
by the order dated 12.11.2021 passed by Madhya Pradesh Nurses
Registration Council, Bhopal whereby the representation submitted
by the petitioner on 10.11.2021 for grant of recognition for the Post
Basic B.Sc. Nursing for the session 2019-2020 has been rejected by
respondent No.2.
(2) Facts of the case, in short, are as under: -
(a) Petitioner No.1 is a fellowship of doctors, nurses,
administrators and allied health professionals formed in the year
1905. In the year 1926, the forum was renamed the Christian
Medical Association of India. In the year, 1945, petitioner No.1
established petitioner No.2 School to impart education in the field of
nursing.
(b) The State of Madhya Pradesh in the exercise of the power
conferred under Section 24 read with section 33 (1) of the Madhya
Pradesh Upcharika, Prasavika Sahai Upcharika Prasavika Tatha
Swasthya Paridarshak Registrikaran Adhiniyam, 1972 framed the
recognition rules known as "The Madhya Pradesh Nursing Shikshan
Sanstha Manyata Niyam, 2018". Under these rules respondent No. 2
i.e. Madhya Pradesh, Nurses Registration Council has been
established to grant recognition to the schools, colleges and
private institutions for imparting the various courses related to
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nursing. Without recognition, no educational institution is
authorized to give admission to any students. Respondent No. 3
is a Madhya Pradesh Medical Science University grants the
afiliatio0n to the educational institutions which have recognition
from the respondent No. 2.
(c) Initially, petitioner No.2 was recognized by Indian Nursing
Council under the Indian Nursing Council Act, 1947 for conducting
the examination and awarding the Diploma in Nursing and auxiliary
midwifery courses. By the passage of time, the petitioner No.2
institution had converted its courses from a Diploma to a Degree
Course in nursing under due recognition given by the Indian Nursing
Council. Petitioner No. 2 has started the teaching course of Post
Basic B.Sc. Nursing Programme. The Madhya Pradesh Medical
Science University, Jabalpur had granted affiliation to petitioner No.2
for the Post Basic B.Sc. Nursing 1 st year for the year 2015-2016 of
intake of 30 seats. Vide order dated 17.02.2017, the said recognition
was continued for the year 2016-2017. Meanwhile, the Madhya
Pradesh Nurses Registration Council was established under the
Madhya Pradesh Nursing Shikshan Sanstha Manyata Niyam, 2018.
The Registrar of the council has granted recognition to petitioner
No.2 for Post Basic B.Sc. Nursing course for academic session 2018-
2019 with the intake of 30 seats. The certificate to that effect was
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issued on 20.12.2018. Thereafter, the Medical Science University
vide order dated 21.05.2019 has granted affiliation for the session
2017-2018.
(3) According to the petitioners for the academic session 2019-
2020, petitioner No.2 has submitted an online application to
respondent No.2 for grant of recognition of Post Basic B.Sc. Nursing
course but the same has been rejected for want of B.Sc. Nursing
Course. According to the petitioners, they tried to contact the
respondent/council and University in person to submit the form
physically but the same was declined. The petitioners have submitted
a representation dated 09.09.2021 requesting respondent No.2 to
grant affiliation also but the same was also not considered.
Accordingly to the application of the petitioner has been rejected for
the Post Basic B.Sc. Nursing affiliation as an online portal does not
provide for an institution only conducting Post Basic Nursing Course
to apply for affiliation. The petitioners had approached before this
Court by way of Writ Petition No.18185/2021. Vide order dated
08.11.2021, the Writ Petition was disposed of with the respondent to
consider the representation within 72 hours and communicate the
decision to the petitioners. In pursuant to the order dated 08.11.2021,
the petitioners have submitted a representation on 09.11.2021, which
came to be dismissed by respondent No. 2 vide order dated
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12.11.2021. The representation of the petitioners has been dismissed
on two counts, firstly the petitioners did not apply online for the
academic session 2019-2020 for Post Basic B.Sc. Nursing course,
secondly, the petitioners do not have a Basic B.Sc. Nursing Course in
view of the amendment brought in the statute w.e.f. 05.12.2020,
hence, the present petition before this Court.
(4) After notice, respondent No.2/council has filed a reply by
submitting the claim for recognition of the Post Basic B.Sc. Nursing
Course Academic Session 2019-202 cannot be entertained as the
petitioners did not submit an online application in accordance with
the Madhya Pradesh Nursing Shikshan Sanstha Manyata Niyam,
2018 within the time frame. It is submitted that the process for
submission of application for recognition of various nursing courses
for the Session 2019-2020 had started in the month of November
2019 and ended on 14.12.2019. Since the petitioners did not apply
online, therefore, now the case of the petitioners cannot be
considered for recognition. It is further submitted that the Supreme
Court in the case of Karnataka State Association of Managment of
Nursing and allied Health Science Institution and Others Vs.
Indian Nursing Council and others (Civil Appeal No. 12759-12761
of 2017) vide order dated 11.09.2017 has held that the Indian
Nursing Council has no authority to grant recognition to the
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institutions imparting nursing courses. After the aforesaid judgment,
the State of Madhya Pradesh in the exercise of a power conferred
under Section 24 read with section 33 (1) of the Madhya Pradesh
Upcharika, Prasavika Sahai Upcharika Prasavika Tatha Swasthya
Paridarshak Registrikaran Adhiniyam, 1972 framed the recognition
rules known as " The Madhya Pradesh Nursing Shikshan Sanstha
Manyata Niyam, 2018". According to which the Madhya Pradesh
Nursing Council is the only statutory body in M.P. to grant
recognition and sanction the intake capacity in respect of the courses
so mentioned in Rule 3 of the said Rules. These Rules came into
force from the date of its publication in the gazette notification dated
16.10.2018. The council is empowered to declare a time schedule for
completing the process of recognition/renewal of recognition. It is
further submitted that the State Government in the exercise of his
powers conferred under Section 24 read with section 33 (1) of the
Madhya Pradesh Upcharika, Prasavika, Sahai Upcharika Prasavika
Tatha Swasthya Paridarshak Registrikaran Adhiniyam, 1972 has
amended the Recognition Rules, 2018 by which schedule 3 is
substituted by new Schedule 3 and this amendment came into force
by way of notification dated 05.12.2020. The provision has been
substituted and it is a settled position of law that when an amendment
is made by substitution of a provision that it has the effect of
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replacing the old provision by the new substituted provision from the
ab-initio. Even as per the amended provision, the petitioners are not
entitled to recognition for Post Basic B.Sc. Nursing Course without
having Nursing B.Sc. course. It is further submitted by respondent
No. 2 that before amendment brought w.e.f. 05.12.2020, there were
guidelines issued by Indian Nursing Council to the effect that an
institution already offering B.Sc. Nursing Programme is eligible to
establish Post Basic Nursing Course, therefore, the petitioners'
application for recognition cannot be considered as there was no
application submitted within the time schedule as well as not having
B.Sc. Nursing course.
(5) The petitioners have filed the rejoinder by submitting that the
amendment dated 05.12.2020 came into effect from the date of its
publication in the gazette and it applies to a newly established
institution, who wants to start a new Post Basic B.Sc. Nursing
Course, this amendment would not apply to the petitioners'
institution as they are already having recognition for since last so
many years. It is also a settled position of law that until and unless
the legislature does not specifically provide applicability of Act or
Rules retrospectively, such Act or Rules cannot be applied
retrospectively. The petitioners have also filed the photocopy of the
screenshot to show that the application for recognition has been
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rejected because petitioner No.2 does not have B.Sc. Nursing
course. The petitioners have also filed copies of mail sent on
06.11.2019, 14.11.2019 and 19.11.2019 to show that the petitioners
did apply for Post Basic B.Sc. Nursing Course without B.Sc. well
within time.
(6) Respondent No.2 has filed the additional return along with a
photocopy of emails received from all other educational institutions
in this field to show that no such emails dated 06.11.2019,
14.11.2019 and 19.11.2019 were received in the office sent by the
petitioners. Respondent No. 2 has also filed the letter of the incharge
of the receiving section to this effect. Hence, prayed for the dismissal
of the writ petition.
(7) Respondent No.3 i.e. Madhya Pradesh Medical Science
University has submitted that since petitioner No.2 is not having
recognition from M.P. State Nursing Council, therefore, the question
of granting affiliation by the University does not arise. Every
institution is required to get fresh recognition and affiliation in each
academic year. Since petitioner No.2 has not been granted
recognition for the academic year 2019-2020, therefore, respondent
No.3 is not bound to grant affiliation to petitioner no 2.
We have heard the learned counsel for the parties at length and
perused the record of the case
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(8) That right for its establishment, the petitioner No.2 was
enjoying the recognition granted by the Indian Nursing Council for
B.Sc. Nursing course and Post Basic Nursing course as well as the
affiliation from the Devi Ahilya Vishwavidyalya, Indore. After the
establishment of Medical University Jabalpur, petitioner No. 2 has e
obtained the affiliation from the year 2015 till 2017-2018. After
Madhya Pradesh Nursing Shikshan Sanstha Manyata Niyam, 2018
came into force in the State of Madhya Pradesh, the petitioner has
obtained recognition from respondent No. 2 for Post Basic B.Sc.
Nursing course for educational session 2018-2019 with the intact
capacity of 30 students. The certificate to that effect dated
20.12.2018 was issued by Registrar. For the next Academic Session
2019-2020 again the petitioner was required to apply for affiliation
from Nursing Council online. According to the petitioners, an
application was submitted online in September 2019 but the same
came to be rejected as petitioner No. 2 was not having the BSc
Nursing Course despite any requirement in the law as the amendment
came into force much after on 05.12.2020. As per the return filed by
respondent No.2, every institution was required to apply for
affiliation for the academic session 2019-2020 between 19.11.2019
till 14.12.2019 as per the time schedule and respondent No.2 came
with the specific plea that no such application form has been received
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online in the office sent by the petitioner No.2. Since the amendment
came into force w.e.f. 05.12.2020, the petitioner has raised the false
plea that the online portal did not accept the application due to the
fact that the petitioner's institution was only conducting Post Basic
B.Sc. Nursing Course and was not having B.Sc Nursing Course.
From 19.11.2019 to 14.12.2919, there was no requirement of having
B.Sc. Course for conducting the Post B.Sc. Nursing Course,
therefore, there was no question of rejection of application on this
count. In the entire petition, the petitioner has not filed a copy of the
application submitted to respondent No.2 for obtaining affiliation for
the academic session 2019-2020. According to the petitioner on
account of the Pandemic, the respondents have introduced online
system for applying for affiliation and the application for Post Basic
Nursing Course has been automatically rejected as the online portal
does not provide for an institution only conducting Post Basic B.Sc.
Nursing Course to apply for affiliation. Such contention is unfounded
because in the month of November -December 2019, there was no
Pandemic. Due to the Civd-19 Pandemic, the lockdown was imposed
in India with effect from 22.03.2020. As per the M.P. Online Portal,
every application was directed to be submitted online, therefore,
there is no material to show that the petitioner has submitted an
application online within the time schedule for affiliation for B.Sc.
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Post Basic Nursing course. Along with rejoinder, the petitioners have
filed the photocopy of screenshots of the online portal to show that
the application was submitted and the same was rejected because the
petitioner was not having the B.Sc. Nursing Course. In the said
screenshots no date is mentioned, therefore, it cannot be said that the
same was submitted within the time schedule and same was rejected.
The petitioners have filed photocopies of emails dated 06.11.2019,
14.11.2019 and 19.11.2019 but respondent No.2 has specifically
denied receiving such emails. The photocopy of emails or print out
are so unclear and illegible to confirm that there is an attachment
with these emails in respect of the application form submitted for
affiliation within time, therefore, respondent No. 2 has rightly
rejected the application of the petitioner on the ground that same was
not submitted an application for affiliation within time.
(9) Even otherwise along with the return the respondent No.2 has
filed the list of institutions, schools, who have been granted
affiliation for the academic session 2019-2020 and all the private
schools and colleges that have been granted affiliation for Post B.Sc.
Nursing courses are having affiliation with B.Sc. Nursing Course
also, therefore, the petitioner No.2 cannot be said that the said
amendment has been applied discriminately. From the list of 448 all
private schools/ colleges in the entire State, it is clear that the
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recognition has been granted/renewed by the council for Post Basic
Nursing Course along with B.Sc. Nursing Course. This position
shows as of 20.03.2020 i.e. prior to amendment came into force
w.e.f. 05.12.2020. Prior to the amendment dated 5.12.2020, the State
Nursing Council was following, the guideline issued by Indian
Nursing Council issued on 20.04.2018, which clearly provides that
the institute already offering B.Sc. Nursing Programme is eligible to
establish Post Basic B.Sc. Nursing Course, therefore, whether the
amendment dated 05.12.2020 is prospective or retrospective makes
no difference because respondent No.2 had taken a consistent view
that none of private schools/ colleges has been granted recognition
for Post B.Sc. Course without B.Sc. Nursing Course.
(10) So far as the role of respondent No.3 Madhya Pradesh Medical
Science University is concerned, it is submitted by Shri Sunil Jain
learned Senior advocate that since petitioner No. 2 is not having
recognition from M.P. State Nursing Council, therefore, the question
of granting affiliation by the University does not arise. It is correct
that every institution is required to get fresh recognition and
affiliation in each academic year. Since petitioner No.2 has not been
granted recognition for the academic year 2019-2020 by respondent
No. 2, therefore, the respondent No.3 is not bound to grant affiliation
to the petitioner, therefore, in view of the above, the decision taken
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by respondent No.2 and 3 cannot be said to be illegal, hence, no
interference is called for, accordingly, the writ petition is hereby
dismissed.
In view of the aforesaid order, the CONC No.2618/2021 is also
hereby dismissed.
No order as to costs.
Certified copy as per Rules.
VIVEK RUSIA RAJENDRA KUMAR (VERMA)
JUDGE JUDGE
praveen/-
PRAVEEN NAYAK
2022.01.17 18:44:01
+05'30'
