Rajasthan High Court - Jodhpur

Rural Education And Health ... vs State Of Rajasthan on 20 October, 2023

Bench: Pushpendra Singh Bhati

[2023:RJ-JD:34274]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 10293/2023

Rural Education And Health Develpment Organization, (S.g.r. College Of B.sc. Nursing), Khasra No. 2791/2782, Gram Hadota, Chomu, Jaipur, Rajasthan, Through Its Secretary Banna Lal Yadav S/o Shri Hanuman Sahay, Aged About 70 Years.

----Petitioner Versus

1. State Of Rajasthan, Through Its Principal Secretary, Medical And Health Department, Government Of Rajasthan, Government Secretariat, Jaipur (Rajasthan).

2. Rajasthan Nursing Council, Through Its Registrar, B 39, Sardar Patel Marg, C Scheme, Jaipur (Rajasthan).

3. Rajasthan University Of Health And Science, Through Its Registrar, Kumbha Marg, Partap Nagar, Jaipur, Rajasthan.

4. Private Physiotherapy, Nursing And Para Medical Institutions Society, Branch Office Jodhpur Through Its Secretary, Plot No.273, Subhash Nagar, Pal Road, Jodhpur Rajasthan.

----Respondents

For Petitioner(s) : Mr. Ankur Mathur a/w Mr. Harshvardhan Thanvi For Respondent(s) : Mr. Sandeep Shah, Sr. Advocate & AAG a/w Mr. Abhimanyu Singh Rathore and Mr. Nishant Bapna Ms. Vandana Bhansali, AGC a/w Ms. Khushi Makwana Dr. Mohit Singhvi Mr. Sangram Singh Ms. Shubhra Singh, Addl. Chief Secretary, Medical & Health Department, Govt. of Rajasthan on VC

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Judgment

Reserved on 10/10/2023 Pronounced on 20/10/2023

1. This writ petition under Article 226 of the Constitution of

India has been preferred claiming the following reliefs:

[2023:RJ-JD:34274] (2 of 10) [CW-10293/2023]

"It is, therefore, respectfully prayed that this writ petition may kindly be allowed and by an appropriate writ, order or direction:-

(i) The record of the case may kindly be called for;

(ii) The respondents may further be directed to include the name of the petitioner institution in the list of eligible institutions for the purpose of counselling in B.Sc. Nursing Course for academic session 2022-23 onwards.

(iii) The respondent federation/association may be directed to recommend the petitioner institution to the authorities for include the name of petitioner institution in its counselling.

(iv) The respondent University may further be directed to accept the annual affiliation and other fees of the petitioner institution.

(v) Cost of litigation and damages may also be allowed in favour of the petitioner.

(vi) Any other appropriate writ or order or direction which is favorable to the petitioner in the facts and circumstances of the case may kindly be granted to the petitioner."

2. As per the pleaded facts, the petitioner-College was

established with an object to run B.Sc. Nursing Course, which is

governed by the provisions of the Indian Nursing Council Act,

1947 (hereinafter referred to as 'Act of 1947'). For establishment

of Nursing School in the private sector, the College/Institution

concerned is required to obtain No Objection Certificate (NOC)

from the State Government; accordingly, the petitioner-College

herein submitted an application along with the requisite fees for

getting the necessary NOC for establishment of B.Sc. Nursing

Institute on 29.01.2010.

2.1. Thereafter, requisite inspection fees was deposited with the

respondent-Rajasthan Nursing Council and was requested to

inspect the petitioner-Institution for running the nursing course.

Furthermore, by an order dated 06.12.2019 passed by the Medical

& Health Department of the State, a ban imposed on issuance of

NOC for establishment of new nursing institutions, was ordered to

[2023:RJ-JD:34274] (3 of 10) [CW-10293/2023]

be removed. However despite the same, the concerned authorities

did not consider the candidature of the petitioner-Institution for

grant of the requisite NOC.

2.2. Subsequently, the respondent authorities vide the office

notes dated 15.10.2020, 03.11.2020 and 09.12.2020 clarified that

the Indian Nursing Council (INC) had no power to grant

recognition to Nursing Institution. For academic session 2020-

2021, a list of eligible institutions was issued for the admission

process in the B.Sc. Nursing Course, however, name of the

petitioner-College was not mentioned therein, as the necessary

inspection had not been conducted by the concerned authorities.

Thereafter, the petitioner-College approached this Hon'ble Court

by filing S.B. Civil Writ Petition no.5173/2022, wherein directions

were issued to inspect the College; subsequent to this, the

inspectors appointed by the Rajasthan Nursing Council (RNC)

carried out the inspection and a positive recommendation was

forwarded to the respondent authorities vide the report dated

15.10.2022. However, the NOC was still not issued.

2.3. Yet again, the petitioner-College approached the respondent-

State for grant of NOC, however its candidature was not

considered for the academic session 2022-23. Thus, another writ

petition no.19356/2022 was filed whereupon the petitioner-

College was provisionally allowed in counselling for the B.Sc.

Nursing Course for academic session 2022-23 vide order dated

02.02.2023 passed by a Coordinate Bench of this Hon'ble Court,

and finally vide order dated 27.04.2023, while disposing of the

[2023:RJ-JD:34274] (4 of 10) [CW-10293/2023]

said writ petition, certain directions were issued. Relevant portion

of the said order dated 27.04.2023 is reproduced as hereunder:

"13. In view of the above submissions, this Court while adjudicating category No.1 out of the broader propositions jointly framed by learned counsel for the parties; allowing the present writ petitions directs the respondents to abide by the assurances given by their counsel and revisit the NOC and grant the same to the petitioners within a period of 30 days from the date of receiving a certified copy of this order, in case they are fulfilling the condition of own 100 bed hospital criteria as well as other eligibility criteria for grant of NOC.

14. In case, there is any rejection, it shall have to carry a speaking order for each institute, giving reasons.

15. It is further directed that once such result is declared within a period of 30 days; if intake capacity is available for the students of the respective courses and the minimum time period for required attendance is remaining, the respondents shall be required to take a considered decision for conducting fresh counselling for the vacant seats equitably between the institutions, which succeed in the process of grant of NOC.

16. In case, the affiliation fee or any other fee chargeable by the State and the University is the issue for grant of NOC, then the petitioners shall be given at least one chance to submit such amount, strictly in accordance with law.

17. It is needless to say that, such considered decision on fresh counselling shall be taken while keeping into consideration the interest of the on going academic session, the students concerned and the institutions.

18. In case, any grievance remains, the parties shall be at liberty to come back to the Court.

19. It is made clear that the list of cases falling in the category- I has been jointly submitted by all the respective counsel for the parties.

20. If any case in the list of present cause title falls outside the purview of category-I, the respondents shall be at liberty to reject the NOC."

[2023:RJ-JD:34274] (5 of 10) [CW-10293/2023]

However, the respondent authorities never complied with the

aforementioned interim order passed by the Hon'ble Court. Thus,

aggrieved of the inaction in considering candidature of the

petitioner-College, the present writ petition has been preferred

claiming the afore-quoted reliefs.

3. Learned counsel for the petitioner submitted that the action

of the respondent State in not considering the case of the

petitioner-College for undertaking admissions in B.Sc. Nursing

Courses for the academic session 2022-23 even after having

sufficient infrastructure for establishment of new B.Sc. Nursing

Course and interim order dated 02.02.2023 passed by this Hon'ble

Court, wherein a direction was issued for inclusion of the name of

the petitioner-College in the ongoing counselling, is unjust,

arbitrary and illegal.

3.1. It was also submitted that the application dated 23.02.2023

submitted by the petitioner-College with the requisite affiliation

fees in pursuance of the interim order, was ignored by the

respondent authorities.

3.2. It was further submitted that as per the provisions of the Act

of 1947, only the concerned State Nursing Councils had the power

and jurisdiction to inspect institutions for the purpose of

ascertaining adequacy and suitability of such institutions for

conducting Nursing Courses.

3.3. However, learned counsel harped upon the positive

inspection report dated 15.10.2022, which was prepared and

submitted by the RNC itself after inspecting the petitioner-

institution for the purpose of ascertaining whether the petitioner-

[2023:RJ-JD:34274] (6 of 10) [CW-10293/2023]

institution is having the necessary infrastructural facilities etc. for

conducting the Course in question, and found that the petitioner-

institution is not lacking in any manner whatsoever. Thus, as per

learned counsel, there was no requirement for conducting re-

inspection of the petitioner-institution.

4. On the other hand, Mr. Sandeep Shah, learned Senior

Advocate & Additional Advocate General assisted by Mr.Abhimanyu

Singh Rathore and Mr. Nishant Bapna; Ms. Vandana Bhansali, AGC

with Ms. Khushi Makwana; Dr. Mohit Singhvi; Mr. Sangram Singh

appearing on behalf of the respondents; as well as Ms. Shubhra

Singh, Addl. Chief Secretary, Medical & Health Department, Govt.

of Rajasthan appearing on VC, while opposing the submissions

made on behalf of the petitioners, submitted that the present writ

petition is barred by the principle of res judicata as the petitioner-

College had on an earlier occasion filed a writ petition being

SBCWP No. 19356/2022 with identical prayers and the same came

to be decided vide order dated 27.04.2023 along with other

connected matters.

4.1. It was also submitted that any positive inspection report by a

Committee of RNC did not entitle petitioner or any institute for

grant of NOC by the State Government for the reason that the

RNC report with recommendation is first placed before the

Scrutiny Committee, whereafter the inspection report is verified by

the Scrutiny Committee and the same is forwarded to the State

Government, and it is the State Government that grants or rejects

the case for the NOC.

[2023:RJ-JD:34274] (7 of 10) [CW-10293/2023]

4.1.1. In furtherance, it was submitted that if the Scrutiny

Committee found lacuna in the inspection report, it is not bound to

make recommendation for grant of the NOC.

4.2. It was further submitted that in pursuance of the aforesaid

order though respondents issued a letter dated 30.05.2023 to the

petitioner-College requiring it to submit certain relevant

documents before the concerned respondent authority, however

no documents were submitted by the petitioner-College; in

pursuance of the decision taken in the meeting dated 07.06.2023,

the RNC vide letter dated 09.06.2023 was directed to conduct

fresh inspection of the petitioner-institution. Further, when the

RNC constituted the inspection team, the petitioner-College by

letter dated 14.06.2023 showcased its inability to get the

institution inspected, thus due to the subsequent action of the

petitioner, its application for grant of NOC was rejected and the

same was communicated by letter dated 03.07.2023.

4.3. It was also submitted that the inspection report of the RNC

does not have recording of 100 bedded own hospital of the

petitioner-College and no directions for grant of NOC were given

by the Hon'ble High Court while passing the order dated

27.04.2023.

5. Heard learned counsel for the parties as well as perused the

record of the case.

6. This Court observes that the petitioner-College was

established for imparting education and nursing training for the

Course in question, and for establishment of the same, application

was submitted for grant of NOC in the year 2010; whereafter the

[2023:RJ-JD:34274] (8 of 10) [CW-10293/2023]

inspection fees was deposited with the RNC and inspectors were

appointed for undertaking the necessary inspection for

enhancement of seats in the petitioner-College, and accordingly, a

positive inspection report was forwarded to the respondent-State.

However, the NOC was not granted in favour of the petitioner-

College, on count of which, the petitioner-College approached this

Hon'ble Court by way of filing a writ petition, whereupon directions

were issued for fresh inspection of the institution; however, the

petitioner-College was not granted the NOC for the academic

session 2022-2023.

7. This Court observes that once the inspection is conducted by

the RNC and report is made regarding the same, such report is

required to be forwarded to the Scrutiny Committee, whereafter

the Committee verifies the inspection report and forwards the

same to the State Government; after which, the State

Government either grants the NOC to the institute or declines to

do so. Thus, it is clear that having a positive inspection report

does not necessarily entitle an institution for grant of NOC, and

therefore, in the present case, even though the petitioner-College

had a positive inspection report from the RNC dated 15.10.2022,

yet that in itself did not place any obligation on the State

Government to grant NOC to the petitioner-College.

8. This Court also observes that in pursuance of the order dated

27.04.2023 of this Hon'ble Court, letter dated 30.05.2023 was

issued to the petitioner-College; however no documents were

submitted before the respondents, nor any correspondence was

made. Thus in the meeting dated 07.06.2023, a decision was

[2023:RJ-JD:34274] (9 of 10) [CW-10293/2023]

taken to reinspect the institution(s) within 3 days and accordingly

to place the report before the Committee; in pursuance of such

decision, a letter was issued to the RNC to conduct re-inspection;

a letter was issued to the petitioner-College as well. However, the

same was declined by the petitioner-College with the reason that

there was no need to get its infrastrcuture re-inspected as the

same had already been done resulting in a positive inspection

report; accordingly, the respondents took the decision to reject

the petitioner's application for grant of NOC for the academic

session 2022-2023, vide order dated 03.07.2023, which reads as

under:

"mijksDr fo"k;kUrxZr ys[k gS fd :jy ,T;wds'ku ,.M gSYFk MoyiesaV vkWxksZukbZts'ku ¼,l-th-vkj- dkWyst vkWi ch,llh uflZax]½ t;iqj dk uohu ch-,l-lh- uflZax dkslZ gsrq fujh{k.k fd;k x;k FkkA fdUrq rRi'pkr jkT; ljdkj }kjk uohu uhfr fnukad 07-06-2022 tkjh fd;s tkus ds dkj.k ,oa vkbZ,ulh }kjk tkjh uohu xkbZMykbu ds rgr laLFkk dk iqu% vU; ny ls fujh{k.k djus gsrq vkj-,u-lh- dks i= dzekad i-35¼1½fpLok-@xzqi&3@2023 fnukad 09-06-2023 ds }kjk uohu uhfr fnukad 07-06-2022 ,oa vkbZ,ulh }kjk fu/kkZjr uohu xkbZMykbu fnukad 05-07-2021 ds vuqlkj fujh{k.k iwoZ esa xfBr ny ds vfrfjDr vU; ny ls djokdj fujh{k.k fjiksVZ fHktokus gsrq funsZf'kr fd;k x;k FkkA vkj,ulh us i= dzekad vkj,ulh@'kS{k-@2023@440 fnukad 15-06-2023 ds }kjk voxr djk;k gS fd :jy ,T;wds'ku ,.M gSYFk MoyiesaV vkWxsZukbZts'ku ¼,l-th-vkj- dkWyst vkWQ ch,llh uflZax½] t;iqj }kjk fujh{k.k djok;s tkus esa vleFkZrk tkfgj djrs gq, vfrfjDr le; ekaxk gSA laLFkk }kjk fujh{k.k fd;s tkus ls bUdkj djus ds dkj.k ,oa 9 ekg dk le; gks tkus ds mijkUr laLFkk dk fujh{k.k ugha djok;k tkuk Lor% gh Li"V djrk gS fd laLFkk fu;e iw.kZ ugha djrh gS ,oa rF;ksa dks Nqikuk pkgrh gSA

[2023:RJ-JD:34274] (10 of 10) [CW-10293/2023]

vr% laLFkk dk vkosnu fujLr fd;k tkrk gSA ,l- Mh-

¼ujsUnz dqekj caly½ la;qDr 'kklu lfpo izfrfyfi %& Jherh oUnuk Hkalkyh] jktdh; vf/koDrk] jktLFkku mPp U;k;ky;] tks/kiqj dks lwpukFkZ ,oa vko';d dk;Zokgh gsrq izsf"kr gSA "

9. This Court is conscious of the fact that the issue regarding

the policy of own 100 bedded hospital, as raised herein, is pending

adjudication before the Division Bench of this Hon'ble Court in

D.B. Civil Special Appeal (Writ) No. 216/2022 (Rajasthan

University of Health Sciences Vs. Mahatma Gandhi B.Sc.

Nursing College) & other connected appeals, and therefore, on

that count also, it would not be appropriate for this Court to grant

any further relief prayed for herein, at this stage.

10. This Court is, therefore, of the opinion that the impugned

action on the part of the respondents is neither arbitrary nor

contrary to law.

11. Thus, in view of the above, the present petition is

dismissed. However, after the final verdict is rendered by the

Hon'ble Division Bench in the aforementioned pending Special

Appeal, the petitioner shall be at liberty to approach this Court

again, strictly in accordance with law. All pending applications

stand disposed of.