Telangana High Court
Archana School Of Nursing vs The State Of Telangana on 11 April, 2023
Bench: Surepalli Nanda
IN THE HIGH COURT OF TELANGANA AT HYDERABAD
W.P. No. 43428 of 2022
Between:
Archana School of Nursing
... Petitioner
And
The State of Telangana and others
... Respondents
JUDGMENT PRONOUNCED ON: 11.04.2023
THE HON'BLE MRS JUSTICE SUREPALLI NANDA
1. Whether Reporters of Local newspapers : yes
may be allowed to see the Judgment?
2. Whether the copies of judgment may be
marked to Law Reporters/Journals? : yes
3. Whether Their Lordships wish to
see the fair copy of the Judgment? : yes
___________________
SUREPALLI NANDA, J
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THE HON'BLE MRS JUSTICE SUREPALLI NANDA
W.P. No. 43428 of 2022
% 11.04.2023
Between:
# Archana School of Nursing
..... Petitioner
And
$ The State of Telangana and others
.....Respondents
< Gist:
> Head Note:
! Counsel for the Petitioners : Mr. K.Anantha Rao
^ Counsel for Respondent Nos.1 & 2: G.P. for Medical & Health
^ Counsel for respondent No.3: Sri V.Srihari
? Cases Referred:
1. AIR 1978 SCC 597
2. (1998) 8 SCC 1
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THE HON'BLE MRS JUSTICE SUREPALLI NANDA
W.P. No. 43428 of 2022
ORDER:
Heard learned senior counsel Sri K. Ananta Rao for the
Petitioner, learned Government Pleader for Medical Health and
Family Welfare appearing on behalf of Respondents 1 and 2 and
Sri V.Srihari, learned standing counsel for respondent No.3.
2. The main prayer sought for by the Petitioner is as
follows :
"to issue a Writ, order or direction more in the nature of Writ
of Mandamus by declaring the action of the 2nd and 3rd
respondents in not including the petitioner school of Nursing in
the list of Nursing Schools for admissions into the general
nursing and midwifery training course issued in
R.C.No.34792/N1/2022, dated 01.10.2022, without including
the Petitioner's School even though the Petitioner has valid
permission of the Government for running the School is
arbitrary, illegal and untenable in law and consequently direct
the 2nd and 3rd respondents to allow the school to function
normally and allow the school to take admissions of students
for general nursing and midwifery training course for the
academic year 2022-2023 and thereby declining admissions
into the Petitioner's Nursing School as being illegal and the
proceedings of the 3rd Respondent bearing Letter
No.TSNMC/GNM/ 5130/2022, dt. 15.09.2022 insisting for
Registered Lease Deed of the premises for a period of 30 years
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declaring the same to be without jurisdiction and illegal and
opposed to the principles of natural justice".
3. The case of the petitioner, in brief, is as follows:
a) The petitioner institute has been established in
Hyderabad after obtaining due permission by the Government
of Andhra Pradesh in the year 1993 vide orders
G.O.Ms.No.No.25, dated 22.01.1993.
b) The 3rd respondent had issued a notice vide LR
No.TSNMC/GNM/5130/2022 dated 15.09.2022 to the petitioner
asking to produce a certified copy of the notarised lease deed.
Upon producing the lease deed, the 3rd respondent had been
insisting that the 30-year lease deed should be a registered
lease deed, which is illegal and improbable.
c) While the matter was pending with the 3rd respondent, the
2nd respondent had issued a notification vide RC
No.34792/N1/2022 dated 01.10.2022, notifying the Nursing
Schools in which admission could be obtained by the students
seeking admission into GNM Course.
d) In the eligible list of Nursing Schools in the said
notification, the name of the petitioner school had not been
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mentioned and upon enquiry with the 3rd respondent, it had
been orally communicated that since the petitioner school had
failed to produce the registered lease deed from the owner of
the school premises, the name of the petitioner's school had
not been mentioned and is not eligible to take fresh batch of
students for the academic year 2022-2023 in the said
Notification i.e., RC No.34792/N1/2022 dated 01.10.2022.
e) The petitioner after issuance of the said notification, had
made repeated representations requesting the 3rd respondent
to include the name of the petitioner school in the list of eligible
school's to take fresh batch of students for the academic year
2022-2023, but the same had been ignored by the 3rd
respondent.
f) Neither the Government nor the Indian Nursing Council
had stipulated that the schools running in the rented premises
should have a registered lease deed for a period of 30 years
and the action of the 3rd respondent in not including the
petitioner's school for admission into the GNM course is illegal.
g) Indian Nursing Council is a body which regulates the
syllabus and methodology of teaching nursing courses for the
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schools established throughout the country. Indian Nursing
Council does not have the authority to grant recognitions to the
institutes imparting Nursing courses and the same has been
held by the Karnataka High Court in a batch of cases.
h) The State Council has no authority to say that a 30 years
registered lease deed is required for inclusion of a school in the
list of institutions for taking admissions into GNM course and
the action of the 3rd respondent is beyond the jurisdiction and
illegal.
i) The G.O.Ms.No. 25, dated 22.01.1993, which had granted
the petitioner school to impart education does not mention
about getting prior permission from the Government. Fresh
conditions could not be rubbed on the petitioner school decades
later and deny the admission of students into the petitioner
school. Hence the Writ Petition.
4. The case of the respondents in brief, is as
follows:
a) The Writ Petition is not maintainable as there is a
effective remedy available to the Writ Petitioner under Rule 9 of
TSNMC Act II of 1926.
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b) The Petitioner had attempted to misrepresent to
statutory authorities and also to the Court and submitted a
photo copy of the unregistered lease deed dt. 29.04.2021
allegedly executed by one M/s. Ind-Asia Constructions in favour
of Petitioner's School and that the Government had accorded
permission vide G.O.Ms.No.25, dt. 22.01.1993 to establish
Petitioner's School with the following specific conditions.
"2) The permission accorded in paragraph one
above, is also subject to other conditions as may be
prescribed by the Govt. from time to time regarding
regulation of procedure of admission and selection
of candidates in the institution.....
c) The Private Training School should be made to develop
its own private hospitals, operation theaters and rural public
health facilities as required for training as per Indian/ Nursing
Council syllabus and that no affiliation to any Government
Hospital or Government Institutions or Primary Health Centers
will be given to the trainees of the Private Training School and
for such field and practical training. Institution with no facilities
of its own will be derecognized after the stipulated date."
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d) Nursing Education is governed by A.P. Nurses, Midwives,
Auxiliary Nurse Midwives & Health Visitors Act, 1926 & Indian
Nursing Council Act and the Rules. The 2nd respondent is the
President of Telangana Nurses Midwives Auxiliary Nurse-
Midwives and Health Visitor's Council as per section 3(2) of A.P.
Nurses, Midwives, Auxiliary Nurse Midwives & Health Visitors
Act, 1926.
e) As per rule 38 of G.O.Ms.No.252, Health Department
dated 27.02.1969, the Nursing Council is empowered to accord
permissions to Nursing Schools and under Rule 39, the State
Nursing Council is empowered to inspect the institutions by
deputing the inspectors for according to recognition and
renewal of Recognition.
f) The petitioner school has violated the conditions laid
down in Rule 8 of G.O.Ms.No.313 dated 16.08.1997 and rules,
resolutions, regulations and notifications issued by Indian
Nursing Council dated 29.10.2014, 20.04.2018 and 09.09.2020
and 12.03.2021 respectively. Vide F.No.1-5/2014-INC, the
institutions should have their own building.
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g) Indian Nursing Council vide F.No.1-6/2018-INC dated
20.04.2018 intimated that a school of Nursing can be in a
rented/leased building in an institutional area or else, a penalty
for Rs.50,000/ has to be paid for every year for 3 years.
h) During the penalty period, if the institute is not to
construct own building then the permission will be withdrawn
and that every school should maintain the following physical
infrastructure:
i) Teaching Block - 20,000 sft
ii) Hostel Block - 17,500 sft
i) The Petitioner school has been a consistent defaulter and
had committed several violations in the past. The petitioner in
the past too had approached this court through Writ Petition
25598 of 2019 along with batch of 12 schools before High
Court and obtained favourable orders, praying to consider the
school for admission of students for the academic years 2019-
2020 and 2020-2021.
j) The unregistered lease deed dated 29.04.2021 is not as
per rules and the Petitioner tried to mislead the authorities
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k) Due to several other violations of the norms of
Government Order and also the norms of Indian Nursing
Council (INC) by the petitioner's school, the petitioner's school
had not been notified for admissions for the present academic
year 2022-2023 and blaming respondents as such is not
correct. Hence the Writ Petition is liable to be dismissed.
PERUSED THE RECORD :
5) The counter affidavit filed by Respondent No.3,
paras 8, 14, 15 and 19 read as under :
8. With reference to the allegations made in Para
No. 2 of affidavit, it is submitted that it is true the
Govt. has initially accorded permission vide GO Ms.
No 579 dated 13-12-2004 to establish Petitioner
School, with the following conditions, amongst
others:
"2) The permission accorded in paragraph one
above, is also subject to other conditions as may be
prescribed by the Govt. from time to time
regarding regulation of procedure of admission and
selection of candidates in the institution.....
8) The Private Training School should be made
to develop its own private hospitals, operation
theaters and rural public health facilities as
required for training as per Indian/ Nursing Council
syllabus and that no affiliation to any Government
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Hospital or Government Institutions or Primary
Health Centres will be given to the trainees of the
Private Training School and for such field and
practical training. Institution with no facilities of its
own will be derecognized after the stipulated date."
14. With reference to the allegations made in Para
No.4 of affidavit, it is submitted, Petitioner's School
has violated several conditions laid down in Ex.P3
G. O. Ms. No. 579, Rule 8 of G. O. Ms. No. 313,
Resolutions, Guidelines and Notifications issued by
the INC from time to time, dated: 29-10-2014, 20-
04-2018 and 09-09-2020 respectively and hence
Petitioner's School was not notified for admissions
for the present academic year 2022-23 and blaming
the Respondents is not correct. It is submitted that
Petitioner's School invoke the jurisdiction of this Hon'ble
Court without challenging the notices issued by the
Respondents and Resolutions, Guidelines and
Notifications issued by the INC from time to time is
untenable in the eye of Law.
15. With reference to the allegations made in Para
No.5 of affidavit, it is incorrect that no rule or
regulation has stipulated either by the Government
or the Indian Nursing Council that schools running
in rented premises should have a registered lease
deed for a period of 30 years is incorrect. It is
incorrect to alleged that the action of the 3rd respondent
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in not allowing petitioner's School in the list of admissions
into the GNM Course illegal is in anyway not correct and
against the spirit of Rules and Regulations.
19. With reference to the allegations made in Para
No.9 of affidavit, petitioner's School having violated
not only the conditions laid down in Government
orders but also failed to follow the norms fixed by
the Indian Nursing Council as stated supra with
regard to physical infrastructure of their school,
has no manner of right to seek to be included in the
list of eligible college for admissions of students.
6. A bare perusal of G.O.Ms.No.25, dt. 22.01.1993
reads as under :
"In the circumstances reported by Director of
Medical Education in reference read above, the
Government hereby accord permission to the A.P.
Nurses, Midwives, ANMS and Health Visitors
Council, Hyderabad to permit the opening of
Archana School of Nursing at Banjara Hills,
Hyderabad, under Rule 38 of the Rules made
U/s.11 (2)(b) of Andhra Pradesh Nursing and
Midwives (Extension and Amendment) Act. 1964,
subject to the condition, instructions and guidelines
laid down in G.O.Ms.No.430, HM & FW Department,
dt. 04.07.1989 and detailed in the Annexure to this
order.
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2. The permission accorded in paragraph 1 above is
also subject to other conditions as may be
prescribed by the Government from time to time
regarding regulation of the procedure of admission
and education of candidates in the institution.
DISCUSSION AND CONCLUSION :
7. The main grievance of the petitioner is that though
the Petitioner Institution had been functioning
continuously for the last more than a decade after
obtaining permission in favour of the petitioner herein
i.e., Archana School of Nursing, 81-A-MLA Colony, Road
No.12, Banjara Hills, Hyderabad, having been accorded
permission by the Government vide G.O.Ms.No.25, dated
22.01.1993, yet the petitioner Nursing School was not
included in the list of Nursing Schools for admissions
into the general nursing and midwifery training course
issued in Rc.No.34792/N1/2022, dated 01.10.2022.
8. It is borne on record and also admitted in the
counter affidavit filed by Respondent No.3 in particular
at para 10, that the Petitioner's Institution functioned till
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the academic year 2020 - 2021. A bare perusal of the
contents of the counter affidavit filed by the Respondent
No.3 herein and in particular para 19, clearly indicates
that the Respondent Authority had several grievances
against the Petitioner Institution, but however did not
state in detail the actual violation of the conditions laid
down in Government orders by the Petitioner's school
and also the details of the norms fixed by the Indian
Nursing Council which have been violated by the
petitioner's school in relation to physical infrastructure
of the school.
9. In view of the fact as borne on record in the
present case that the counter affidavit filed by the
respondent No.3 does not refer to any specific notice
having been issued to the Petitioner herein putting the
Petitioner's Institution on notice making the Petitioner
liable for consequences of the recognition being
cancelled or any personal hearing having been afforded
to the Petitioner herein prior to excluding the
Petitioner's school for admissions for the present
academic year 2022-23 and not notifying the petitioner's
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school for admissions for the present academic year
2022-23, fact being any order or proceeding not having
been passed/issued informing the Petitioner's school of
the decision or reason for the said exclusion, this Court
opines that the impugned action of the Respondent
authorities in not notifying the Petitioner's School for
admissions for the present academic year 2022-23 is
clearly in violation of principles of natural justice and
also the law laid down by the Apex Court in the case of
Menaka Gandhi vs. Union of India reported in AIR 1978
SCC 597 which clearly observed as follows :
"...... although there are no positive words in
the statute requiring that the party shall be heard,
yet-the justice of the common law will supply the
omission of the legislature",
.........Natural justice is a great humanizing principle
intended to invest law with fairness and to secure
justice and over the years it has grown into a
widely pervasive rule affecting large areas of
administrative action.
.... The inquiry must, therefore, always be does
fairness in action demand that an opportunity to be
heard should be given to the person affected?
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..... The law must, therefore, now be taken to be
well settled that even in an administrative
proceeding, which involves civil consequences, the
doctrine of natural justice must be held to be
applicable."
10. This Court, therefore, is of the firm opinion that one
another aspect of principles of natural justice is also
giving an opportunity of hearing to the person who is
stated or whose actions are stated to be in contravention
of existing rules, before action proposed against such
person is taken. Admittedly, as borne on record the
same had not been adhered to or followed in the present
case.
11. Though the material documents filed by the
Respondent No.3 along with the counter affidavit
enclosed copies of show cause notices dated 30.12.2020,
16.04.2021, 19.08.2021, 29.09.2021, 15.09.2022 and
Petitioner's reply dated 12.01.2021 to the notice dt.
30.12.2020 issued to the Petitioner by the President,
TSNMC & DME, TS Hyderabad, no final orders admittedly
have been passed against the Petitioner as on date nor
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there is any consideration of the explanation dt.
12.01.2021 submitted by the Petitioner to the said show
cause notice dt. 30.12.2020 issued to the Petitioner as
on date. The counter affidavit also curiously is silent on
this aspect.
12. The learned Government pleader's plea on the
availability of alternative remedy of Appeal as
specifically averred at para 3 of the counter affidavit
filed by Respondent No.3 is liable to be rejected in view
of the simple fact that refusing to exercise discretion
conferred under Article 226 of the Constitution of India
where a statute provides for effective and efficacious
remedy of Appeal is a self imposed restriction by the
Courts, which however would not apply atleast in 3
contingencies (1) where writ petitioner seeks
enforcement of fundamental rights, (2) where the order
or proceedings impugned or action of the authorities is
in violation of principles of natural justice and (3) where
the order or proceedings are wholly without jurisdiction
or the virus of an Act is challenged as laid down by the
Apex Court in the case of Whirlpool Corporation v.
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Registrar of Trade Marks, Mumbai & Others reported in
(1998) 8 SCC 1. In view of the fact that admittedly as
borne on record no order has been passed by the
Respondent which the Petitioner herein could impugn by
filing appeal before the Government, the exclusion of the
Petitioner Institution from the list of Notified Schools
permitted to admit the students during the present
academic year 2022-2023 unilaterally, irrationally being
in violation of principles of natural justice, this Court is
of the firm opinion that the Petitioner's School is entitled
to invoke the jurisdiction of this Court under Article 226
of the Constitution of India.
13. It is true that this Court is conscious of the fact that
the schedule pertaining to the admissions and the
procedure there under strictly needs to be adhered to,
but the present case is an exception in view of the
simple fact that the petitioner's institution in the year
1993 by virtue of the recognition accorded to it by the
Government vide G.O.Ms.No.25, dt. 22.01.1993, had
been functioning regularly since then and had
continuous renewals till 2021 and though the Indian
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Nursing Council (Minimum Pre-requisites for Granting
Suitability to Nursing Programmes) Regulations 2020
came into force with effect from 2020, making it
mandatory that the Institution shall have its own
building within 2 years from the date of its
establishment and further a clause which stipulates that
the lease cannot be terminated for a period of 30 years,
the Petitioner's Institution admittedly had a renewal of
recognition in its favour even in the year 2021.
Admittedly as borne on record the petitioner's institution
since the year 1993 i.e., 22.01.1993, the petitioner
institution had renewal of recognition periodically till the
year 2021, and the latest renewal was in process but
however when the Petitioner's Institution was declined
admissions unilaterally into General Nursing and
Midwifery Training Course for the academic year 2022-
2023, the Petitioner herein is constrained to approach
this Court by filing Writ Petition in November, 2022.
14. This Court opines that the case of the Petitioner is a
case of renewal of permission/recognition and not a
case of grant of permission. The permission accorded to
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the Petitioner in exercise of the powers conferred under
Rule 38 U/s.11 (2)(b) of Andhra Pradesh Nursing and
Midwives (Extension & Amendment) Act, 1964 and
subject to the conditions, instructions and guidelines laid
down in G.O.Ms.No.430, HM & FW Department, dt.
04.07.1989, had not been revoked as on date and further
no steps having been initiated in this regard are evident
on record.
15. This Court opines when admittedly as borne on
record the petitioner's Institution had been functioning
continuously since 22.01.1993, at this stage the
Respondents cannot decline admissions into General
Nursing and Midwifery Training Course for the academic
year 2022-2023 to the petitioner herein unilaterally,
illegally and irrationally. This Court is of the firm opinion
that without issuing any notice to the Petitioner
Institution for withdrawal of permission granted on
22.01.1993, there cannot be any unilateral denial of
renewal in the year 2022 and the said exercise of power
by the Respondents herein in the present case is
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manifestly arbitrary and opposed to the principles of
natural justice.
16. Taking into consideration of all the above referred
facts and circumstances and the law laid down by the
Apex Court in Menaka Gandhi v. Union of India reported
in AIR 1978 SCC 597 and the law laid down by the Apex
Court in Whirlpool Corporation v. Registrar of Trade
Marks, Mumbai & Others reported in (1998) 8 SCC 1
(referred to and extracted above) and also
G.O.Ms.No.25, dated 22.01.1993, issued in favour of the
petitioner, which clearly permitted the petitioner herein
to start General Nurse Training Course from the
academic year 1993, and the same being in force as on
date and not being revoked as on date, the writ petition
is allowed as prayed for and the Respondents are
directed to permit admissions into the General Nursing
and Midwifery Training Course issued in R.C.
No.34792/N1/2022, dt. 01.10.2022 by extending the
time stipulated for admissions issued in R.C.No.34792/
N1/2022, dt. 01.10.2022 in the online portal and in the
event the same is not technically feasible the Petitioner
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School shall be permitted to admit the students through
spot admission under the supervision of the concerned
Authority and complete the process of registration for
admissions for the academic year 2022-2023 into the
General Nursing and Midwifery Training Course to the
Petitioner Institute i.e., Archana School of Nursing,
Hyderabad within a period of 2 weeks from the date of
receipt of the copy of the order. However, there shall be
no order as to costs.
Miscellaneous petitions if any, pending shall stand closed.
______________________
MRS JUSTICE SUREPALLI NANDA
Dated : 11 .04.2023
Note : L.R. copy to be marked
b/o
kvrm
