Telangana High Court
Bhagya Nagar School Of Nursing vs The State Of Telangana on 24 March, 2023
Bench: Surepalli Nanda
IN THE HIGH COURT OF TELANGANA AT HYDERABAD
W.P. No. 39698 of 2022
Between:
Bhagya Nagar School of Nursing
... Petitioner
And
The State of Telangana and others
... Respondents
JUDGMENT PRONOUNCED ON: 24.03.2023
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. 39698 of 2022
% 24.03.2023
Between:
# Bhagya Nagar 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 the Respondent No.1: G.P. for Medical & Health
? Cases Referred:
1. (1998) 8 SCC 1
2. AIR 1978 SCC 597
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THE HON'BLE MRS JUSTICE SUREPALLI NANDA
W.P. No. 39698 of 2022
ORDER:
Heard learned senior counsel Sri K. Ananta Rao for the
Petitioner and learned Government Pleader for Medical Health
and Family Welfare on behalf of the Respondents.
2. The main prayer sought for by the Petitioner is as
follows :
"to issue a Writ of Mandamus, 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 and the order
extending the time for admissions issued in
R.C.No.34792/N1/2022 dated 15.10.2022 as being without
jurisdiction and 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 by setting aside the action of
the 2nd respondent in not including the petitioner Nursing
School in the list bearing R.C.No.34792/N1/2022 dated
01.10.2022 and the order extending the time for admissions
issued in R.C.No.34792/N1/2022 dated 15.10.2022 declaring
the same to be without jurisdiction."
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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 2004 vide orders
G.O.Ms.No.No.579 Health Medical and Family Welfare (K1)
Department dated 13.12.2004.
b. The 3rd respondent had issued a notice vide LR
No.TSNMC/GNM/3043/2021 dated 29.09.2021 to the petitioner
asking to produce a certified copy of the registered lease deed.
Upon producing the sale deed, the 3rd respondent had been
insisting that the 30-year lease deed should be a registered
sale deed, which is illegal and improbable and illegal.
c. The 2nd respondent had issued a admission 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
mentioned and upon enquiry with the 3rd respondent, it had
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been orally communicated that since the petitioner school had
failed to produce the registered sale 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'sto take fresh batch of students for the academic year
2022-2023 but the same had not been ignored completely
ignored by the 3rd respondent.
f. Neither the Government not 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
schools established throughout the country. Indian Nursing
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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. 579 Health Medical and Family Welfare
(K1) Department dated 13.12.2004, 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:
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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.
b. The Petitioner had suppressed the material fact that the
Lease Deed submitted by the petitioner vide registered no.
5065 of 2022 dated 07.05.2022 vide petitioners letter dated
10.08.2022 is not a registered Lease Deed and hence is
contrary to the claim.
c. 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.
d. As per rule 38 of G.O.Ms.No.252, Health Department
dated 27.02.1969, the State Nursing Council is empowered to
accord permissions to Nursing Schools and under rule 39, the
State Nursing Council is empowered to inspect the institutions
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by deputing the inspectors for according to recognition and
renewal of Recognition.
e. 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. Vide F.No.1-5/2014-INC, the institutions should
have their own building.
f. Indian Nursing Council vide F.No.1-6/2018-INC dated
20.04.2018 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.
g. 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
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h. 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
20545 of 2019 and through Writ Petition 20490 of 2020
praying to consider the school for admission of students for the
academic years 2019-2020 and 2020-2021.
i. The registered lease deed submitted by the petitioner
vide Document no. 5065 dated 01.07.2022 is a different one
and the petitioner is liable for criminal proceedings.
j. 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.
5. PERUSED THE RECORD :
A. The counter affidavit filed by Respondent No.3,
paras 8, 13, 14 and 18 read as under :
8. With reference to the allegations made in Para
No. 2 of affidavit, it is submitted that it is true the
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Govt. has initially accorded permission vide GO Ms.
No 579 dated 13-12-2004 to establish Petitioner
School, with the following conditions, amongst
others:
"4. The aforesaid Educational Society should also follow
the following instructions scrupulously.
(i) The Institute should run regularly with the required
infrastructural facilities equipment, teaching staff,
nonteaching staff office rooms and clinical facilities,
hostel facility, library books as prescribed by Indian
Nursing Council, New Delhi, Andhra Pradesh Nursing and
Midwives Council, Hyderabad or Government from time to
time and should run in the best interests of students. The
institution will be inspected by an inspecting officer
appointed by Government or APNMC, INC, New Delhi
from time to time.
5. The permission granted in para (2) above is
liable for cancellation whenever the
Government/Indian Nursing Council, New Delhi,
Andhra Pradesh Nursing and Midwives Council,
Hyderabad/ Director of Medical Education forms the
opinion based on an inspection report that the afore
mentioned Educational Society is not running the
School in the best interests of the students or
commits any irregularity or violates any of rule or
regulation, after giving 15 days' notice to the
Educational Society to show cause, against the
proposed cancellation and pass appropriate orders
after considering the explanation, if any, offered by
the Society against the show cause notice"
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13. 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.
14. 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
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.
18. 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
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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 para 2 of G.O.Ms.No.579, dt.
13.12.2004 reads as under :
"2. After careful consideration of the matter and in
exercise of the powers conferred under rule 38
under section 11 (2) (b) of Andhra Pradesh Nursing
and Midwives (Extension and Amendment) Act.
1964 and sub rule (iii) of rule 12 of Andhra Pradesh
General Nurse Training Institutions (Admissions
into General Nurse Training and Grant of
permission to Private Schools of Nursing) Rules,
1997 made under section 99 of Andhra Pradesh
Education Act, 1982 (Act lof 1982), Government
hereby accord permission to the following
Educational Society to establish the Institution in
the name indicated below and to start General
Nurse Training course of three years duration with
intake capacity of forty five (45) and clinical
attachment specified below from the academic year
2005-06, subject to obtaining affiliation to A.P.
Nurses and Midwives Council, Hyderabad and
Indian Nursing Council, New Delhi :-
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Name of the Name of the Name Intake Clinical
Educational Nursing of the capacity attachment
Society and School and Course sanctioned for training of
address, its address sanctio by Govt. the students
whose name ned of the
Institution is Institution
sanctioned
(1) (2) (3) (4) (5)
Bhagyanagar Bhagyanagar GNM Forty five 1. Osmania
Educational School of (45) General
Society, Nursing Hospital,
Nampally, H.No.16-2- Hyderabad.
Hyderabad 705/1/13, 2. Soumya
New Nursing
Malakpet, Home, Main
Hyderabad Road,
Ramnagar,
Hyderabad
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. Bhagyanagar Educational Society, Nampally,
Hyderabad, for establishment of School of Nursing in the
name of "Bhagyanagar School of Nursing" in Hyderabad
in Private Sector and starting the General Nurse Training
Course with intake capacity of 45 for the academic year
2005-2006 initially, vide G.O.Ms.No.579, dt. 13.12.2004
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issued by the then Government of A.P., Health, Medical
and Family Welfare (K2) Department, was however not
included in the list of Nursing School for admission into
the General Nursing and Midwifery Training Course
issued in RC No.34792/N1/2022, dt. 01.10.2022, though
the Petitioner has valid permission of the Government
for running the school.
8. It is borne on record and also admitted in the
counter affidavit that the Petitioner's Institution
functioned till 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 18
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.
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9. A bare perusal of the contents of the counter
affidavit filed by 3rd Respondent, in particular paras 13,
14 and 18 (extracted above) does not clearly indicate
specific violation of Government Orders and norms fixed
by the Indian Nursing School by the Petitioner herein. 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 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
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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?
..... 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."
This Court, therefore, is of the firm opinion that one
another aspect of principles of natural justice is also
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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.
10. Though the material documents filed by the
Respondent No.3 along with the counter affidavit
enclosed copies of show cause notices dt. 30.12.2020,
16.04.2021, 19.08.2021, 29.09.2021 and Petitioner's
reply dt. 14.09.2020 to the notice dt. 31.08.2020 issued
to the Petitioner and Petitioner's reply dt. 16.01.2021 to
the show cause notice dt. 30.12.2020 issued by the
President, TSNMC & DME, TS Hyderabad, no final orders
admittedly have been passed against the Petitioner as on
date nor there is any consideration of the explanation
submitted by the Petitioner to various show cause
notices issued to the Petitioner as on date. The counter
affidavit also curiously is silent on this aspect.
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11. 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.
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
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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.
12. 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
2004 by virtue of the recognition accorded to it by the
Government vide G.O.Ms.No.579, dt. 13.12.2004 had
been functioning regularly since then and had
continuous renewals till 2021 and though the Indian
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
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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 2004 i.e., 13.12.2004, 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 October, 2022.
13. 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
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 sub-
Rule 3 (iii) of Rule 12 of Andhra Pradesh General Nursing
Training Institutions (Admissions into General Nursing
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Training & Grant of Permission to Private Schools of
Nursing) Rules, 1997 made under Sec.99 of the Andhra
Pradesh Education Act, 1982 (Act 1 of 1982) vide
G.O.Ms.No.579, dt. 13.12.2004 had not been revoked as
on date and further no steps having been initiated in this
regard are evident on record.
14. This Court opines when admittedly as borne on
record the petitioner's Institution had been functioning
continuously since 13.12.2004, 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
13.12.2004 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
manifestly arbitrary and opposed to the principles of
natural justice.
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15. 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.579, dated 13.12.2014 issued in favour of the
petitioner, which clearly permitted the petitioner herein
to start General Nurse Training Course from the
academic year 2005-2006, 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. 15.10.2022 in the online portal and in the
event the same is not technically feasible the Petitioner
School shall be permitted to admit the students through
spot admission under the supervision of the concerned
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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., Bhagyanagar School of Nursing,
resident of L.B.Nagar, Chinthalkunta, Vanasthalipuram,
Ranga Reddy District 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 : 24.03.2023
Note : L.R. copy to be marked
b/o
kvrm
