WPMS/2234/2021
2021 Latest Caselaw 4745 UK

     IN THE HIGH COURT OF UTTARAKHAND
                      AT NAINITAL
     ON THE 25TH DAY OF NOVEMBER, 2021
                             BEFORE:
     HON'BLE SHRI JUSTICE MANOJ KUMAR TIWARI

        Writ Petition (M/S) No. 2234 of 2021
BETWEEN:
Govind Gaurav Pandey                                      ...Petitioner
      (By Mr. Lalit Sharma, Advocate)

AND:

State of Uttarakhand and others                       ...Respondents
      (By Mr. T.S. Phartiyal, Additional Chief Standing Counsel for the
      State/respondent nos. 1 and 2, Mr. Shailendra Nauriyal, Advocate for
      respondent no.3, Mr. Pankaj Chaturvedi, Advocate for respondent
      no.4, Mr. V.B.S Negi, Senior Advocate for respondent no.5 assisted by
      Mr. Narayan Singh Negi, Advocate and Mr. Atul Bahuguna, Advocate
      for respondent no.6)


                          JUDGMENT

Petitioner is challenging the decision taken by Registrar, Uttarakhand Nurses and Midwives Counsel, Dehradun (respondent no. 6), communicated to him vide order dated 12.10.2021, whereby his application for registration of M.Sc. Nursing qualification in the register of Uttarakhand Nurses and Midwives Council, was rejected.

2. Facts on which, there is no dispute is that petitioner's B.Sc. Nursing Degree, which he obtained from Kumaon University is duly registered with respondent no. 6. Subsequently, petitioner took admission in two years' M.Sc. Nursing Course in Arihant College of Nursing, Haridwar and upon successful completion of the said course, M.Sc. Nursing Degree was awarded to him by H.N.B. Uttarakhand Medical Education University, Dehradun.

3. Petitioner applied for registration of his M.Sc. Nursing Degree to respondent no. 6 and also deposited registration fee of Rs. 2,550/- on 30.06.2020. His application has been rejected by the impugned order dated 12.10.2021 on the ground that petitioner served as Nursing Tutor in some other Nursing College (respondent no. 5) upto 16.04.2018, therefore, he did not attend the M.Sc. Nursing Programme, during Academic Session 2017-2018, regularly.

4. Secretary, Arihant College of Nursing, Haridwar (respondent no. 4) has filed a counter affidavit stating that petitioner regularly attended the classes and for that reason, he was permitted to appear in the examination. It is further stated that on account of his successfully passing M.Sc. Nursing Course, degree has also been awarded by the H.N.B. Uttarakhand Medical Education University, Dehradun.

5. A separate counter affidavit has been filed by Uttarakhand Nurses and Midwives Council (respondent no. 6) in which reliance has been placed upon Section 20 & 21 of U.P. Nurses, Midwives, Assistant Midwives and Health Visitors Registration Act, 1934 (U.P. Act No. XV of 1934), as amended from time to time. The provisions relied upon by respondent no. 6 are extracted below:-

"20. Removal of fraudulent and incorrect entries from registers. Any entry in the registers of nurses, midwives, assistant midwives [Auxilary Nurse-Midwives] or health visitors which is provided to the satisfaction of the Council to have been

fraudulently or incorrectly made, may be removed under the written order of the Council:

Provided that before action is taken under this section notice shall be given to the person concerned, whose objections, if any, shall be heard and considered.

21. Power of council to prohibit entry in or to direct removal from the registers, etc. (1) The Council may, upon reference from the Registrar or otherwise, prohibit the entry in, or direct the removal from, the registers of nurses, midwives, assistant midwives [Auxiliary nurse-midwives] or health visitors of the name of any nurse, midwife, assistant midwife, [Auxiliary nurse-mid-wife] or health visitor or suspend such person's registration on any of the following grounds, namely:-

(a) that such person has been convicted by any court of any non bailable offence, such conviction not having been subsequently set aside or remitted or the offender pardoned;

(b) that such person has been guilty of conduct which in the opinion of the Council indicates that she is not a fit or proper person to practice as a nurse, midwife, assistant midwife, [Auxiliary nurse-midwife] or health visitor;

(c) that there are defects in the character of such person which in the opinion of the Council would render the entry in, or the retention of, the name of such person in the registers undesirable :

Provided that no action shall be taken by the Council under this section until after due inquiry (at which an opportunity shall be given to the person concerned to be heard in defence and to appear, either in person or by counsel, vakil, pleader, or attorney, and which may, in the discretion of the President of the Council be held in Camera the Council by a majority of two-thirds of the members present and voting at the meeting of the Council, shall find that there is ground for taking action against the person concerned.

(2) The Council may direct that the name of any person against whom an order has been passed under sub-section (1) shall be entered or re-entered or continue to be entered in the registers as the case may be."

6. It is not in dispute that aforesaid Act has been adopted by State of Uttarakhand in exercise of power under Section 86 of U.P. Reorganisation Act, 2000, by issuing an Adaptation & Modification Order. The expression "Uttar Pradesh" in Section 3 has to be read as "Uttaranchal" by virtue of

Adaptation & Modification Order dated 07.11.2002 (Annexure CA-3 to counter affidavit of respondent no. 6)

7. Reliance by respondent no.6 upon the aforesaid provisions of U.P. Act No. XV of 1934 is misplaced. Provision contained in Section 20 is not attracted to the facts of the present case, as the said provision contemplates removal of an entry from the register of Nurses, which has been made fraudulently or by suppression of facts.

8. Learned counsel appearing for respondent no. 6 submits that the impugned order has been passed in exercise of power under Section 21 of the aforesaid Act. Section 21 empowers the council to prohibit entry of a name in the register or to direct removal of name from the register of Nurses or suspend registration of a person on any of the grounds enumerated in sub- Section (1) of Section 21.

9. Careful perusal of Section 21(1) reveals that it only empowers the Council to prohibit entry of name of any Nurse/Midwife in the relevant register maintained by respondent no.6. The definition of 'Council' as given in Section 2(a) refers to Section 3 of the Act. Section 3 of the Act is reproduced below:-

"3. Establishment and incorporation of the Council. A Council shall be established and called "the [Uttar Pradesh] Nurses and Midwives Council"; and such Council shall be a body corporate and have perpetual succession and a common seal and shall by the said name sue and be sued."

10. From the aforesaid statutory provision, it is apparent that the power to prohibit entry of a name in the State register is available only to the Uttarakhand Nurses and Midwives Council.

11. From the statutory scheme, it is further revealed that order as contemplated under Section 21(1) can be passed by the Council after receiving a reference from the Registrar or otherwise. But, the Registrar is not competent to pass an order under Section 21(1) of the aforesaid Act.

12. Admittedly, in the present case it is the Registrar, who has passed the impugned order. In the absence of any provision enabling the Registrar to pass such an order, the impugned order cannot be justified. No statutory provision was placed before this Court by learned counsel appearing for respondent no. 6 to show that Registrar was competent to pass the impugned order.

13. In such view of the matter, this Court has no hesitation in holding that Registrar has gone beyond the scope of his power, to pass the impugned order.

14. Even otherwise also, the power available under Section 21 of the Act can be exercised only in certain contingencies, which are enumerated in sub-Section (1) thereof. Reason assigned in the impugned order for refusing to register petitioner's M.Sc. Nursing Qualification does not fall in any of

the three contingencies mentioned in Section 21(1) of the Act.

15. In such view of the matter, the impugned order dated 12.10.2021 passed by Registrar, Uttarakhand Nurses and Midwives Council is unsustainable in the eyes of law.

16. Accordingly, the writ petition is allowed and the impugned order is quashed. Respondent No. 6 is directed to re-consider petitioner's application for registration of M.Sc. Nursing qualification in the State Nurses Register, in accordance with law, as early as possible, but not later than four weeks from the date of production of certified copy of this order.

(MANOJ KUMAR TIWARI, J.) Shubham