Uttarakhand High Court

Poonam Almiya vs State Of Uttarakhand And Others on 1 August, 2023

 HIGH COURT OF UTTARAKHAND AT NAINITAL

            Writ Petition (M/S) No.1472 of 2023

Poonam Almiya                                      ...Petitioner

                              Versus

State of Uttarakhand and others                   ...Respondents

Present:-
             Mr. Aditya Pratap Singh, Advocate for the petitioner.
             Mr. Yogesh Pandey, Additional C.S.C. for the State.
             Mr. Atul Bahuguna, Advocate for the respondent no.2.
             Mr. Dharmendra Barthwal, Advocate for the
             respondent no.3
             Mr. Shailendra Nauriyal, Advocate for the respondent
             no.4.

                                JUDGMENT

Hon'ble Ravindra Maithani, J. (Oral)

The petitioner applied for B.Sc. Nursing Four

Year Course from the respondent No.3, Naincy College of

Nursing, Jeolikote Nainital ("the College"). She applied for

her registration with the respondent no.2, Uttarakhand

Nurses & Midwives Council, Village DandaLakhond, P.O.

Gujrara, Sahastradhara Road, Near Rajiv Gandhi

Playground, Dehradun ("the Council"). But, it has not been

done. Hence, the petitioner is before the Court seeking

direction from the respondent no. 2 for registering her as a

Nurse in accordance with law.

2. Heard learned counsel for the parties and

perused the record.

3. It is the case of the petitioner that after

intermediate examination, she took admission in B.Sc.

Nursing Four Years Course in the College. She completed

her course. She was given course completion certificate on

28.07.2022. Thereafter, the respondent no.4, Hemwati

Nandan Bahuguna Uttarakhand Medical Education

University, ("the University") also provided her provisional

certificate for B.Sc. Nursing on 04.07.2022. But, when the

petitioner approached the respondent no.2, Council for

registering her as a Nurse, her request has not been

processed. Hence, the petition.

4. The respondent no.2, the Council in its counter

affidavit has stated that the eligibility for admission in Four

Years Nursing Course has been determined by the Indian

Nursing Council and according to it, for such admission the

minimum 45% marks in subjects Physics, Chemistry and

Biology in 12th standard is mandatory. The petitioner,

according to respondent no.2 had failed in Chemistry in her

12th standard examination. She does not possess the

educational qualification, as fixed by Indian Nursing

Council for her admission in B.Sc. Four Years Nursing

Course.

5. In its counter affidavit, the respondent no.3, the

College has stated that the petitioner ought to know as to

what was the minimum qualification for her admission. In

para 23 of its counter affidavit, Director of the respondent

no.3, the College has stated that "it is submitted the

petitioner also known very well that she failed in the

chemistry subject but she hidden the fact during taking

the admission in her graduation. Just saying that

student/petitioner cannot be made to suffer for the

fault of university or college at such belated stage, the

petitioner cannot escape from her responsibility during

taking admission in B.Sc. Nursing. It is also her duty to

disclose all the facts before the admission counsellor.

Rest of the averments made in the para are not

accepted and strongly denied, need no comments."

6. The respondent no.4, the University in its

counter affidavit has simply stated that the University Act,

as per the information supplied by the respondent no.3, the

College in para 13 of the counter affidavit filed on behalf of

the respondent no.4, the University, it is categorically

asserted that "however, it is the admitted case of the

petitioner that she was fail in subject Chemistry in 12th

standard at the time of admission in B.Sc. Nursing

Course and she provided each and every documents

before the Counselling Committee of College. The said

documents with regard to the admission form, Senior

School Certificate Examination 2017 and Marksheet

have been sent to the University on 21.07.2023

through mail. In the admission form the B.Sc. Nursing

the petitioner mentioned only total percentage of

intermediate i.e. 60%. Copy of the documents of the

petitioner are being filed herewith and marked as

Annexure No.CA-3 to this counter affidavit."

7. Learned counsel for the petitioner would submit

that the petitioner never concealed any fact while taking

admission in the respondent no.3, College. Alongwith her

admission form, she had enclosed each and every mark

sheets that were required. She was admitted. She could not

be expected to know as to what was the eligibility criteria

for admission in the B.Sc. Four Years Nursing Course. She

cleared the examination in 1st class marks. Now, after five

year studying through, she is being denied the fruits of her

course, which she had undergone. Learned counsel would

submit that it, in fact, would ruin her future prospects and

career as well. Therefore, directions need to be issued to the

respondents authorities to register the petitioner as a

qualified Nurse. In support of his contention, learned

counsel has taken reference to the judgment in the case of

Abha George and others Vs. All India institute of Medical

Sciences (Aiims) and Another, 2022 SCC OnLine Del 366.

8. In the case of Abha George (supra), the

candidates were admitted in M.Sc. Nursing, but two

months thereafter, there admission was cancelled on the

ground that, in fact, there B.Sc. Nursing final year result

was declared beyond the cut-of-date. Following the

principles of law, as laid down in the case of Rajendra

Prasad Mathur Vs. Karnataka University and another, AIR

1986 Supp. SCC 740, the Hon'ble Supreme Court in that

case has held that the blame lies more upon the institution

than the petitioner and the order cancelling the admission

of such candidates were quashed.

9. Learned counsel for the respondent no. 2 the

Council would submit that the Council had prescribed the

minimum educational qualification for taking admission in

B.Sc. Four Years Course. It is submitted that the petitioner

did not possess 45% aggregate marks in Physics, Chemistry

and Biology. She is less with 12% marks. She is failed. She

could not clear the Chemistry. She is failed in that subject.

Therefore, she was not eligible.

10. Learned counsel for the respondent no.3 the

College would submit that the petitioner was well aware

that for admission in B.Sc. Four Years Nursing Course,

45% aggregate marks were required in Physics, Chemistry

and Biology in 12th Grade, which she did not possess. It is

argued that her sister was studying in the same college. He

would submit that at the time of admission, the petitioner

filled the counselling form in which she did not record her

total marks obtained in Physics, Chemistry, Biology and

English. She simply filled her aggregate in five best subject

as 60%. She did not fill the form properly and individual

marks in each subject were kept blank. Reference has been

made to the mark sheet of the petitioner for Senior School

Examination, 2017 to indicate that, in fact, in Chemistry,

she had secured only 31 marks. Learned counsel would

also refer to the application form for B.Sc. Nursing Four

Years Course submitted by the petitioner to argue that

there also the petitioner had disclosed her aggregate of best

five subjects. Learned counsel would submit that, in fact,

every document was forwarded to the University, due to

oversight, the error could not be detected at the time of

admission because the respondent no.3, College was taking

150 students at a time; the Teachers were in the

counselling, so it might have not come to their notice that

the petitioner has less than eligible marks.

11. Learned counsel for the respondent no.4 the

University would submit that they appeared as per the

information supplied by the respondent no.3, the College.

12. The following facts are not in dispute:-

(i) The petitioner appeared for Class 12th

examination conducted by Central Board of

Secondary Education ("CBSE"). She was

declared pass as per the mark sheet and

certificate issued by the CBSE.

(ii) The petitioner did apply for her admission

in the respondent no.3 College in B.Sc.

Four Years Nursing Course. She filled the

counselling form. There are some columns

which are not filled. But, the petitioner did

file her mark sheets alongwith application

form.

(iii) The aggregate in best five subjects at 12th

standard of the petitioner. According to CG

Pay multiplication is 60%. This is what she

recorded in her counselling.

(iv) In her application form also, the petitioner

did disclose her intermediate marks. She

did not conceal any of her documents

pertaining to the marks obtained by her in

12th standard.

(v) It is not the case of either, the respondent

no.3, the College or the respondent no.4,

the University that the petitioner committed

any forgery or deliberately concealed any

document. She did file the documents.

13. On behalf of the respondent no.3, the College it

is being submitted that due to oversight, it could not be

detected that the petitioner, in fact, had 44% marks in

aggregate in Physics, Chemistry and Biology and not 45%

which was required.

14. This Court cannot presume that the petitioner

knew that the minimum marks required for admission in

B.Sc. Four Years Course is 45% aggregate in Physics,

Chemistry and Biology.

15 The petitioner did submit her documents and her

mark sheets. She has disclosed her five subjects marks

obtained in 12 standard.

16. In the case of Rajendra Prasad Mathur (supra),

the Hon'ble Supreme Court in a similar situation observed

in para 8 as hereunder:-

"8. We accordingly endorse the view taken by the learned Judge and affirmed by the Division Bench of the High Court. But the question still remains whether we should allow the appellants to continue their studies in the respective engineering colleges in which they were admitted. It was strenuously pressed upon us on behalf of the appellants that under the orders initially of the

learned Judge and thereafter of this Court they have been pursuing their course of study in the respective engineering colleges and their admissions should not now be disturbed because if they are now thrown out after a period of almost four years since their admission their whole future will be blighted. Now it is true that the appellants were not eligible for admission to the engineering degree course and they had no legitimate claim to such admission. But it must be noted that the blame for their wrongful admission must lie more upon the engineering colleges which granted admission than upon the appellants. It is quite possible that the appellants did not know that neither the Higher Secondary Examination of the Secondary Education Board, Rajasthan nor the first year BSc examination of the Rajasthan and Udaipur Universities was recognised as equivalent to the Pre-University Examination of the Pre-University Education Board, Bangalore. The appellants being young students from Rajasthan might have presumed that since they had passed the first year BSc examination of the Rajasthan or Udaipur University or in any event the Higher Secondary Examination of the Secondary Education Board, Rajasthan they were eligible for admission. The fault lies with the engineering colleges which admitted the appellants because the Principals of these engineering colleges must have known that the appellants were not eligible for admission and yet for the sake of capitation fee in some of the cases they granted admission to the appellants. We do not see why the appellants should suffer for the sins of the managements of these engineering colleges. We would therefore, notwithstanding the view taken by us in this Judgment, allow the appellants to continue their studies in the respective engineering colleges in which they were granted admission. But we do feel that against the erring engineering colleges the Karnataka University should take appropriate action because the managements of these engineering colleges have not only admitted

students ineligible for admission but thereby deprived an equal number of eligible students from getting admission to the engineering degree course. We also endorse the directions given by the learned Judge in the penultimate paragraph of his Judgment with a view to preventing admission of ineligible students."

17. In the instant case also, as stated, the petitioner

may not be presumed to know as to what was the minimum

marks prescribed by the Nursing Council for admission in

B.Sc. Four Years Nursing Course. She had submitted her

documents. It is not the case of any of the respondents

that the petitioner at any stage, withheld the documents

and gave forged documents. The percentage of marks which

she filled is aggregate of five best subjects. If some of the

column of the counselling form are blank, she could have

been asked to fill the blanks. If documents were with the

counselling team. What is being argued is that some of the

Teachers, who have put in four to five years of service in