Madras High Court
R.Usharani vs The Secretary To Government Of ... on 11 April, 2022
W.P.No.7857 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 11.04.2022
CORAM
THE HONOURABLE DR. JUSTICE ANITA SUMANTH
W.P.No.7857 of 2019 &
WMP.Nos.8486 & 8488 of 2019 & 6641& 6647 of 2022
R.Usharani ... Petitioner
Vs
1.The Secretary to Government of India,
Ministry of Health and Family Welfare,
Nirman Bhavan, New Delhi.
2.The Secretarty to Government,
Health and Family Welfare Department,
Secretariat, Fort St.George,
Chennai-9.
3.The President,
Indian Nursing Council,
Combined Council Building,
Kotla Road, Temple Lane,
New Delhi – 110 002.
4.The President,
Tamil Nadu Nurses and Midwives Council,
No.40, Jayaprakash Narayanan Maligai,
Santhome High Road,
Chennai – 4. ... Respondents
https://www.mhc.tn.gov.in/judis
1
W.P.No.7857 of 2019
PRAYER in W.P.No.4291 of 2019: Writ Petition filed under Article 226 of
the Constitution of India praying to issue a Writ of Certiorari, calling for the
records Letter Ref.No.F.No.22-10/NUID/2014-INC, 8.9.2015 issued by the
3rdrespondent and consequential circular instructions issued in
Ref.No.4571/NC/2018, dated 28.06.2018 by the 4th respondent and quash the
same.
For Petitioner : Mr.V.Prakash, Senior Counsel
for Mr.R.Kamaraj
For Respondents : Mr.Ramprabu,
Additional Central Government Standing Counsel - R1
Mr.D.Ravichander,
Special Government Pleader – R2
Mr.M.S.Krishnan, Senior Counsel
for Mr.B.Deepak Narayanan – R3
Mr.B.Thomas - R4
ORDER
The petitioner is a registered Nurse and Midwife with the Tamil Nadu
Nurses and Midwives Council, Chennai (in short ‘State Council’/’R4’). She
had originally challenged letter dated 08.09.2015 issued by the Indian Nursing
Council (in short, ‘INC’/’R3’) and consequential circular instructions dated
28.06.2018 issued by R4.
2. The aforesaid impugned communications of R3 and R4 were assailed
on the ground that the process that has been initiated for formulation of a
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W.P.No.7857 of 2019
national live register of nurses is improper. Pending writ petition, the Indian
Nursing Council (Nurses Register and Tracking System) Regulations, 2019
have come to be gazetted and the prayer has been amended by the petitioner,
who now seeks a quash of notification No.149, dated 07.05.2019 notifying the
aforesaid regulations.
3. Though the Writ Petition has been filed by an individual registered
nurse, the attack is mounted effectively and for all practical intents and
purposes, by R4. The Madras Nurses and Midwives Act, 1926, subsequently
amended to read Tamil Nadu Nurses and Midwives Act, 1926 (in short ‘State
Act’) provides for the registration of Nurses, Midwives, Health Visitors,
Auxiliary Health Midwives or Dhais (in short, ‘AHM’) in Madras.
4. Section 5 provides for the registration of Nurses, Midwives, Health
Visitors and Auxiliary Nurses, and Midwives. A register is maintained by State
Council in this regard. The registration and all aspects of employment are
regulated by the State Council and learned Counsel for R4 would be at pains to
point out that the State enactment is a complete code by itself.
5. Though this writ petition has been preferred ostensibly by one of the
members of the State Council, it appears quite clear to the Court that it is the
State Council itself which is contesting the matter, as it apprehends an inroad
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W.P.No.7857 of 2019
into its powers and functions by the INC. For ease of reference, the subject
matter of the membership of INC and the State Council, though comprising of
nurses, AHMs and LHVs, is cohesively and for the purposes of this writ
petition, referred to simply as ‘nurses’.
6. The grounds of challenge are as follows:
(i) that INC does not have any authority, either statutory or otherwise, to
regulate the working of the nurses in the State and their registration on a
centralized basis;
(ii) that the registration of the nurses falls within the exclusive domain of
the State Council in terms of Section 5 of the 1926 Act and the impugned
notification constitutes an interference in its statutory function;
(iii) that the impugned notification vests the power to register nurses in
the INC, which is contrary to the State statute, impinging upon the regional
autonomy of the State;
(iii) that likewise, imposition of punishment upon erring nurses is also a
function of the State Council and no such power vests in the INC;
(iv) The power of removal and regulation of their employment
constitutes a statutory function of the State Council alone;
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W.P.No.7857 of 2019
(vi) that the purpose of the 1926 Act is to decentralize, instead of which
the impugned notification centralizes power with the INC, with the sole
intention of eroding the authority of the State Council.
(vii) that the INC has corresponded directly with constituent colleges that
conduct nursing courses directing them to ensure the registration of their nurses
with it, (that is, the INC), under threat of punitive action for which they have no
authority or statutory power;
(viii) that there have been similar attempts in the past to trespass into the
statutory functions of the State Council and these have been quashed by the
High Courts and the Hon’ble Supreme Court.
7. My attention is drawn to the judgment of the Hon’ble Supreme Court
in Karnataka State Association of the Management of nursing and allied
Health Science Institution and Others Vs. Indian Nursing Council and Others
W.A.No.12759 to 12761 of 2017 dated 11.09.2017, wherein the power of the
INC to grant recognition to institutions imparting nursing courses was
considered.
8. The Court held categorically that INC has no such authority and
cannot publish on its website materials indicating that institutions imparting
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W.P.No.7857 of 2019
nursing courses have to obtain recognition from INC. There was a specific bar
that was laid as against the INC in this regard.
9. The arguments of the petitioner and the State Council are aligned. Per
contra, the INC would point out that the impugned notification is only intended
to streamline the process of registration and provide electronically for a live
register. No new condition/power was created as the Rules already provided for
the maintenance of a central register that was to be updated on an annual basis.
Thus, the maintenance of a nurses register was already a part of the statutory
scheme and the impugned notification merely updates such maintenance,
technologically.
10. Attention is drawn to para 15A of the Indian Nursing Council Act,
1947 (Central Act) which provides for the maintenance of a Indian Nursing
Register (INR). Section 15B states that twenty (20) printed copies of the State
Register are to be forwarded to the INC every year, taking note of
changes/modification/additions to the Register from time to time. The Central
Council is thus statutorily required to be intimated periodically of the nurses
population in the country by all State councils.
11. The impugned notification now provides for running the process
electronically, as a result that Sections 15A and B will now have a virtual
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W.P.No.7857 of 2019
application. With this, practical considerations and difficulties, both at the State
and Central levels, involving delay in communicating changes in the Register
will stand mitigated. The result will be increased efficiency in the maintenance
and updation process.
12. Learned senior counsel, on instructions from the learned counsel for
the INC, makes it clear that the maintenance of the live register does not
obviate the existence or maintenance of a physical register but only
supplements it. As regards the communication of INC with the constituent
colleges, he would agree that such acts do constitute an excess of authority by
individuals within the Central Council and are not endorsed by the INC. He
would agree that such communications must, and will be avoided in future.
13. The process culminating in the impugned communication did not
take place overnight and was gradual. It was preceded by several rounds of
meetings wherein all the State Councils had been represented. He specifically
draws attention to minute of meeting convened on 05.10.2016 wherein the
representative of the Tamil Nadu State Council has also participated and its
views taken note of.
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W.P.No.7857 of 2019
14. Thus, there is no merit whatsoever in this writ petition and the effort
to frustrate a bonafide move to streamline the existing system must not be
encouraged or allowed. He would thus pray that this writ petition be dismissed.
15. Having heard the learned counsels, the following unambiguous
positions emerge. The Indian Nursing Council has been constituted in terms of
Section 27 of the Central enactment with the following objects:
Whereas it is expedient to constitute an Indian Nursing Council in
order to establish a uniform standard of training for nurses midwives and
health visitors.
16. The State Regulating Council has been enacted under the State Act,
though the Central Act provides for constitution of a regulatory body at the
level of the State as well. The roles, responsibilities and functions of the INC
and State Council are separate, well-defined and distinct.
17. The above position has been settled by the judgment in the case of
Karnataka State Association of the Management of nursing and allied Health
Science Institution and Others (supra). The only situation where an overlap of
activity between the Central and the State Council is statutorily envisaged, is in
relation to the maintenance of the nurses register, as provided for under
Sections 15A and B.
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W.P.No.7857 of 2019
18. This is a conscious overlap intended to ensure that while the
registration of nurses is a State function, the Central is kept fully appraised of
the nurses population pan India qua each State, and to monitor their movement
throughout the country. Sections 15A and B are extracted below:
15A. Indian Nurses Register.––(1) The Council shall
cause to be maintained in the prescribed manner a register of
nurses, midwives, auxiliary nurse-midwives and health visitors
to be known as the Indian Nurses Register, which shall contain
the names of all persons who are for the time being enrolled on
any State register.
(2) It shall be the duty of the Secretary of the Council to
keep the Indian Nurses Register in accordance with the
provisions of this Act, and from time to time, to revise the
register and publish it in the Gazette of India and in, such
other manner as may be prescribed.
(3) Such register shall be deemed to be a public
document within the meaning of the Indian Evidence Act, 1872
(1 of 1872) and may be proved by a copy published in the
Gazette of India.]
15B. Supply of copies of State registers. ––Each State
Council shall supply to the Council twenty printed copies of the
State register as soon as may be after the 1st day of April of
each year and inform the Council.
19. That apart, the scheme of the Central Act is very clear in regard to
what the other functions of the INC are. Section 10 provides for recognition of
the qualifications of nurses, however only by the State for the purposes of
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W.P.No.7857 of 2019
formulating the State Council, and Section 11 provides for the recognition of
nurses in the State register.
20. Section 11 continues this mandate by setting out the effect of
recognition in the State register and Section 12 endorses power to the INC to
call upon the State Councils to furnish information as may be required from
time to time in connection with the courses of study, training and examination
conducted by an affiliated institution.
21. The power is very specific in that such queries may be addressed
only to the State Council and not to the Institutions themselves, which is the
reason why INC does not condone the act of its officials in communicating
with the Institutions directly and soliciting information from them under threat
of levy of penalties.
22. Though INC is vested with the power of inspection of any Institution
in order to examine and ensure that its standards are being maintained as well
as for purposes of conduct of examinations, read with Section 12, it is clear that
such power will have to be exercised by the INC in tandem with the State
Councils only. Reports formulated by the Inspectors pursuant to such
inspections are to be supplied to the Central as well as the State units, as well
as the concerned Institution.
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W.P.No.7857 of 2019
23. Section 14 provides for the withdrawal of recognition granted to an
Institution, if it appears to the Executive Committee of the INC that the
Institution does not satisfy the requirements of the Council. However, such de-
recognition is only through the State, as provided for in Clause b of Section 14
which states that if the INC feels that the Institution does not satisfy such
requirements, then a complaint is to be forwarded by the INC to the concerned
Government, and the latter shall thereafter forward the complaint with its
remarks to the State Council, calling for an explanation in regard to the
deficiencies.
24. Upon receipt of the explanation, enquiry shall be conducted and
proceedings taken to a logical conclusion. It is thus clear that the role of the
INC covers those areas relating to quality control of Institutions, teaching of
nursing courses, recognition and de-recognition. Its purpose is to establish a
uniform standard of training for nurses and its functions and responsibilities are
restricted to, and in furtherance of these objects alone.
25. To this end, and as fairly stated by learned senior counsel on
instructions, the attempts of the INC to correspond and communicate directly
with Institutions Tamil Nadu for any purpose, barring the aforesaid purposes,
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W.P.No.7857 of 2019
constitutes an excess of authority. The argument of the petitioner and the State
Council in this regard are accepted.
26. The impugned notification is, in my considered view, only to
upgrade/update the technology for maintenance of the nurses register and I see
nothing untoward in the same. The notification in Section 4 talks of the
maintenance of a ‘live register’ and reads as follows:
Maintenance of Live Register.- The Council shall
maintain the Indian Nurses Register in electronic/physical
form and for this purpose enrol all categories of nursing
personnel and collate the date in order to achieve the mandate
of maintaining the Live Register. The process of enrolment is
as follows:
(i) All Registered Nurses would ensure that their names
are duly captured in the nearest available agency
(health/nursing education institution/establishments) set up by
the Council
(ii) Date would be entered and uploaded after Aadhar
based bio-metric authentication in a online real time basis.
(iii) For this purpose the Registered Nurse would be
required to submit the requisite documents such as Class X
certificate or equivalent certificate authenticating the date of
birth, certificates of nursing educational qualifications and
SNRC registration certificate only for verification and for
uploading the scanned images of certificates.
(iv) After due verifications and approval by the SNRC
and on being enrolled in Indian Nurses Register, the concerned
Nurses shall be provided with a Nurse Unique Identity Card
(NUID) and Nurse & Midwife Register Passbook.
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W.P.No.7857 of 2019
27. There has been no substantive amendment to the powers assumed by
either the INC or the State Councils and the notification is purely a
technological improvement to the existing system, a measure to keep up with
the times and ensure that movement of nurses from one State to another is
effectively monitored. Advancement and updation of existing systems will only
benefit the system and its integrity. In a sense, it empowers all the Councils, the
INC as well as the State Councils, and makes the provisions of Sections 15A
and B of the Central Act dynamic and in keeping with the times.
28. The statutory provisions were designed bearing in mind available
technology that required transmission of physical copies of the register from
the respect State Councils to the INC. This is rendered unnecessary in the
present times when technology enables both the updation as well as the
transmission to be seamless and instantaneous.
29. Also and admittedly, there is substantial delay in the transmission of
the registers from the State to the Centre and it is also the case of the State
Council that the registers are not being maintained systematically. In such an
event, and all the more, must one take advantage of available technology as it
enables their grievances to be met effectively.
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W.P.No.7857 of 2019
30. As rightly pointed out by the INC, the efforts for an upgradation of
the present system are seen to have been ongoing for the last several months
and, not to the exclusion of the State Councils. Representatives of the State
Councils have been invited to deliberate upon the exercise of upgradation and
Dr.S.Ani Grace Kalaimathi from Tamil Nadu has participated in the
deliberations.
31. In fine, a comparison of Section 4 of the impugned notification and
Sections 15A and B of the Central Act do not reveal to me, any deviation or
amendment to the original purpose and intent. That apart, the powers assumed
by the INC for the purposes of Sections 15A and B have been in the statute
from inception and the assumption of power by the INC in this regard has
never been questioned by the State Councils.
32. There is thus, in my view, no justification whatsoever, for present
challenge as, in sum and substance, the assumption of power by the INC
remains unchanged, as far as the maintenance of a register is concerned. The
impugned notification insofar as it relates to Section 4 is upheld.
33. The petitioner apprehends, and the INC agrees, that the present effort
would be diminished if there are additional/unique numbers assigned to the
nurses by the INC. The State councils, being the primary bodies for the
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W.P.No.7857 of 2019
registration of the Nurses, assigns a Unique number to every Nurse at the time
of their registration. This shall be the only number relatable to that Nurse as the
issuance of another number would only add confusion to the tracking
/monitoring process.
34. The second ground of challenge relates to the fees and the penalties
imposed. The Central enactment provides in Section 16 for the power to make
regulations and reads as follows:
16. Power to make regulations. ––
(1) The Council may make regulations not inconsistent
with this Act generally to carry out the provisions of this Act,
and in particular and without prejudice to the generality of the
foregoing powers, such regulations may provide for––
(a) the management of the property of the Council and
the maintenance and audit of its accounts;
(b) the manner in which elections referred to in sub-
section (2) of section 5 and in clause (a) of sub-section (2) of
section 8 shall be conducted;
(c) the summoning and holding of the meetings of the
Council, the times and places at which such meetings shall be
held, the conduct of business thereat and the number of
members necessary to constitute a quorum;
(d) prescribing the functions of the Executive Committee,
the summoning and holding of meetings thereof, the times and
places at which such meetings shall be held, and the number of
members necessary to constitute a quorum;
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W.P.No.7857 of 2019
(e) prescribing the powers and duties of the President
and the Vice-President;
(f) prescribing the tenure of office and the powers and
duties of the Secretary and other officers and servants of the
Council;
(ff) prescribing the powers and duties of inspectors;]
(g) prescribing the standard curricula for the training of
nurses, midwives and health visitors, for training courses for
teachers of nurses, midwives and health visitors, and for
training in nursing administration;
(h) prescribing the conditions for admission to courses
of training as aforesaid;
(i) prescribing the standards of examination and other
requirements to be satisfied to secure for qualifications
recognition under this Act;
(j) any other matter which is to be or may be prescribed
under this Act.
35. As rightly pointed out, there is no power herein providing for the
levy of fee and penalty. The INC, justifies the levies provided under Sections
8(2), 9 and the Schedule, all in the impugned notification, as necessary to
enhance and augment the resources of the State Councils. They confirm that no
portion thereof will be appropriated by the INC. The INC also submits that the
aforesaid levies are a measure to streamline the movement of nurses as, at
present, nurses transition from one state to another, without there being a
proper record of their transition or their present location.
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W.P.No.7857 of 2019
36. They state that it is necessary for the INC and the State Councils to
be aware at all times of the location of the registered nurses and the imposition
of penalty is solely to address this requirement. Though perhaps a justified
measure, there is admittedly no provision under the INC, enabling the INC to
impose such levies in the absence of which such provisions are liable to set
aside. The provisions in terms of which penalty is imposed are quashed for
want of required authority under the Central Act.
37. This writ petition is disposed as above. No costs. Connected
miscellaneous petitions are closed.
11.04.2022
Kbs/ska
Index : Yes
Internet : Yes
Speaking Order
To
1.The Secretary to Government of India,
Ministry of Health and Family Welfare,
Nirman Bhavan, New Delhi.
2.The Secretarty to Government,
Health and Family Welfare Department,
Secretariat, Fort St.George,
Chennai-9.
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W.P.No.7857 of 2019
3.The President,
Indian Nursing Council,
Combined Council Building,
Kotla Road, Temple Lane,
New Delhi – 110 002.
4.The President,
Tamil Nadu Nurses and Midwives Council,
No.40, Jayaprakash Narayanan Maligai,
Santhome High Road,
Chennai – 4.
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W.P.No.7857 of 2019
DR.ANITA SUMANTH, J.
Kbs/ska
W.P.No.7857 of 2019 &
WMP.Nos.8486 & 8488 of 2019 &
6641 of 2022
11.04.2022
https://www.mhc.tn.gov.in/judis
