IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:
30-8-2013
CORAM
THE HONOURABLE MR.JUSTICE M.JAICHANDREN
Writ Petition No.3559 of 2012 and
M.P.No.1 of 2013
The Trained Nurses Association of India
Rep. By its Secretary General Sheila Seda
L17 Florance Nightingale Lane
Green Park, New Delhi 110 016.
(Reg No.199/1919) ..
Petitioner.
Versus
1. The State of Tamil Nadu rep. By its
Secretary to Government,
Health and Family Welfare Department
Fort St. George,
Chennai-600 009.
2. The Indian Nursing Council
Rep. By its President
Kotala Road, Temple Lane,
New Delhi 110 002.
3. The Tamil Nadu Nurses and Midwives
Council
No.140, Santhome High Road,
Chennai-600 004.
4. Dr.M.G.R.University
Rep. By its Registrar,
No.69, Anna Salai,
Guindy, Chennai 600 032. ..
Respondents.
Prayer: Petition filed seeking for a Writ
of Mandamus to forebear the 4th respondent from conducting the Nursing Courses
on par with B.Sc. Degree courses under Allied Health Sciences Regulations,
Diploma courses under Allied Health Sciences
Regulations for the
purpose of conferring the B.Sc. Nursing Degree and
Diploma without the recognition of the respondents 1 to 3.
For
Petitioner : Mr.P.Subramanian
For
Respondents : Mr.R.Ravichandran
Additional Government Pleader (R1)
Mr.A.R.Nixon (R2 & R3)
Mr.P.H.Arvind Pandian
Additional Advocate General Assisted by
Mr.Anand David (R4)
O R D E R
Heard
the learned counsel appearing for the petitioner, as well as the learned
counsels appearing on behalf of the respondents.
2.
This writ petition has been filed praying that this court may be pleased to
issue a Writ of Mandamus forbearing the fourth respondent from conducting the
Nursing Courses, on par with the B.Sc. Degree Courses and the Diploma Courses,
under the Allied Health Sciences Regulations, for the purpose of conferring the
B.Sc. Nursing Degrees and the Diploma Certificates, without obtaining the
necessary recognition from the second and the third respondent Councils.
3.
It has been stated that the petitioner Association has been registered, under
the Societies Registration Act, 1860, bearing Registration No.199/1919. The
petitioner Association has been formed for the purpose of espousing the cause
of the qualified and registered nurses, who are at various places in India.
Further, the petitioner Association has been striving for ensuring high quality
and standards in Nursing Education.
4.
It has been further stated that the Nursing Education in Tamil Nadu is governed
by the provisions of the Tamil Nadu Nurses and Midwives Act, 1926, and the
Indian Nursing Council Act, 1947. It has been further stated that the Tamil
Nadu Nurses and Midwives Act, 1926, provides for the constitution of "Madras
Nurses and Midwives Council", for regulating and for the conferring the
necessary qualifications and for recognizing the qualifications. Similarly,
Section 10 of the Indian Nursing Council Act, 1947, provides for the
recognition of the qualifications, provided under the schedules annexed to the
Act. Section 11 of the Indian Nursing Council Act, 1947, relates to the effect
of the recognition. Section 12A(1) of the Tamil Nadu Nurses and Midwives Act,
1926, provides for the prohibition of unauthorized conferment. The said
provisions found in the Tamil Nadu Nurses and Midwives Act, 1926 and the Indian
Nursing Council Act, 1947, make it clear that a qualification granted by an
appropriate authority could be a recognized qualification, for the purposes of
the said Acts. If any degree is conferred relating to the field of Nursing
Education it would not be a recognized qualification, in the absence of the
recognition being granted under the relevant provisions of the said Acts.
5.
It has been stated that the following courses have been recognized by the
Indian Nursing Council and the Government of Tamil Nadu.
1)
Auxiliary Nursing and Midwife (ANM) Courses.
2)
General Nursing and Midwifes (GNM)
3)
B.Sc. Nursing (Basic)
4)
Post Basic B.Sc. Nursing
5)
M.Sc. (Nursing)
6)
M.Phil
7)
Ph.D
8)
Post Basic Specialty Diploma Course
6.
The recognized Diploma Programmes are as follows:
1)
Post Basic Diploma in Oncology Nursing
2)
Post Basic Diploma n Nurse Practitioner in Midwifery.
3)
Post Basic Diploma in Neonatal Nursin
4)
Post Basic Diploma in Psychiatric/Mental Health Nursing
5)
Post Basic Diploma in Emergency and Disaster Nursing
6)
Post Basic Diploma in Critical Care Nursing.
7)
Post Basic Diploma in Cardio-Thoracic Nursing.
8)
Post Basic Diploma in Orthopedic & Rehabilitation Nursing
9)
Post Basic Diploma in Neuro Science Nursing.
10)
Post Basic Diploma in operation room Nursing.
While so, the fourth respondent University
has commenced the following courses, without the necessary approval and the
recognition from the State government and the Indian Nursing Council, as
contemplated under the relevant provisions of the Indian Nursing Council Act,
1947, and the Tamil Nadu Nurses and Midwives Act, 1926.
1.
B.Sc. Accident and Emergency case Technology
2.
B.Sc. Physician Assistant
3.
B.Sc. Critical case Technology
4.
B.Sc. Cardiac Technology
The said courses have been commenced under
the guise of B.Sc. degree courses
7.
It has been further stated that the syllabus and the academic portions of the
courses offered by the fourth respondent University are substantially similar
to the syllabus prescribed for the recognized and approved courses in the field
of Nursing Education. It has been further stated that the course contents of
the Diploma Programmes conducted by the fourth respondent University, under the
guise of Allied Health Sciences Regulations, are only a duplication of the
existing programmes approved by the Indian Nursing Council. The unrecognized courses
are being encouraged by the fourth respondent University, in spite of the fact
that the requisite qualification for the Diploma course is only 35% of marks in
the 10th standard. While the minimum qualification prescribed for the existing
recognized Diploma Courses is 50% in the 10th standard. The encouragement given
by the fourth respondent University for the conducting of the courses, which
are similar in nature to the recognized courses already in existence, would
give rise to untrained and incompetent persons entering the field of nursing.
Such a situation would result in disastrous consequences to the society at
large and it would be detrimental to the interests of the patients who may need
some help in nursing care. In spite of the various representations submitted by
the petitioner Association, to the authorities concerned, including the
respondents herein, no serious steps have been taken to curb the menace. In
such circumstances, the petitioner has been constrained to file the present
writ petition, before this Court, under Article 226 of the Constitution of
India.
8.
The learned counsel appearing on behalf of the petitioner had relied on the
decision of the Supreme Court, in State of West Bengal Vs. The Committee for
Protection of Democratic Rights, 2010 (2) CTC 84, to substantiate his
contention that the provisions of the Dr.M.G.R. Medical University Chennai Act,
1987, cannot extinguish or abrogate the fundamental rights vested in a person
or an entity. Any law that may abrogate such rights would be violative of the
Basic Structure Doctrine enunciated by the Supreme court.
9.
The learned counsel appearing on behalf of respondents 2 and 3 had submitted
that the courses recognized by the fourth respondent University would not fall
under the schedules annexed to the Indian Nursing Council Act, 1947, and
therefore, the courses cannot be recognized under the relevant provisions of
the Indian Nursing Council Act, 1947, and the Tamil Nadu Nurses and Midwives
Act, 1926. While so, it is not open to the fourth respondent University to
award Degrees or Diploma Certificates to the candidates who had completed the
courses offered by the fourth respondent University. The fourth respondent
University ought to have obtained the necessary recognition, as per the
provisions of Section 10 of the Indian Nursing Council Act, 1947. In fact, the
Provisions of Section 14 of the said Act confers the powers on the Indian
Nursing Council to withdraw the recognition, even if it had been granted by the
Council, at an earlier point of time. Section 11 of the said Act provides that
a recognized qualification would be sufficient for the enrollment of a
candidate, as a nurse or as a midwife, for establishing their practice in any
part of India. Section 13 of the Act provides for the appointment of Inspectors
in order to conduct inspections to provide for uniform standards of training
and for the fixing of the course content. While so, the fourth respondent
University, without obtaining the necessary recognition from the Indian Nursing
Council, has been conferring B.Sc. Nursing Degrees and Diploma Certificates,
without having the authority to do so. If the fourth respondent University is
permitted to continue its practice of granting Degrees and Diplomas, for
unrecognized courses, it would lead to severe dilution of the standards of
nursing care in the country, and untrained and incompetent persons would be
permitted to provide nursing care to the sick and the suffering patients,
without possessing the necessary qualifications in nursing care. It would also
result in unhealthy competition in the field of nursing care. Therefore, this
Court may be pleased to allow the writ petition, by prohibiting the fourth
respondent University from awarding degrees and from granting diploma
certificates to the candidates, who had completed allied nursing courses, which
are not recognized, as per the relevant provisions of law.
10.
The learned counsel appearing on behalf of respondents 2 and 3 had stated that
the preamble of the Indian Nursing Council Act, 1947, states that it is
expedient to constitute an Indian Nursing Council, in order to establish a
uniform standard of training for nurses, midwives and health visitors. He had
also submitted that the writ petition filed by the petitioner Association is
maintainable in view of the fact that the said Association would be represented
by one of its members in the Council constituted by the Central Government,
under the provisions of the Indian Nursing Council Act, 1947. He had also
pointed out that Section 10(1) of the said Act provides that the qualifications
included in Part I of the schedule shall be recognized qualifications and the
qualifications included in part II of the schedule shall be recognized higher
qualifications. Thus, it is clear that the fourth respondent University ought
to be restrained from granting Degrees and Diploma Certificates to unqualified
and untrained candidates, who would be performing the duties relating to
nursing care, as that of the members of the petitioner Association. He had also
submitted that the act of the fourth respondent University would be contrary to
medical ethics
11.
The learned counsel appearing on behalf of the respondents 2 and 3 had relied
on the following decisions in support of his contentions and in order to state
that the writ petition filed by the petitioner, to establish the rights of the
members of the petitioner Association, is not maintainable in law.
11.1.
In Coimbatore District Wholesale All Vegetables Merchants' Association Vs.
Coimbatore City Municipal Corporation re. by its Commissioner, Coimbatore and
others, 2012 (1) CWC 878, this court had held that Article 226 of the
Constitution of India can be invoked only by a person who is aggrieved, except
in a case in which the petitioner had prayed for the issuance of a Writ of Quo
Warranto. However, if a person shows to the court that his right is likely to
be adversely affected by the impugned action, which is based on statutory
provisions, the writ petition filed by such a person cannot be rejected on the
ground that he does not have the locus standi to maintain the same.
11.2.
In Association of Management of Private Colleges Vs. All India Council for
Technical Education and others, 2013-3-L.W. 545, it has been held that a writ
petition filed by an association is maintainable.
12.
Mr.P.H.Arvind Pandian, Additional Advocate General, appearing on behalf of the
fourth respondent had submitted that the courses recognized by the fourth
respondent University are not substantially similar to the courses which had
been recognized by respondents 2 and 3, as per the provisions of the Indian
Nursing Council Act, 1947, and the Tamil Nadu Nurses and Midwives Act, 1926.
Therefore, there is no necessity to obtain the recognition, as per Section 10
of the Indian Nursing Council Act, 1947. Further, the candidates, who are granted
the Degrees and the Diploma Certificates, would not be handling the patients,
directly. Such candidates are being trained in certain nursing skills and in
providing certain allied health services, to aid the nurses in doing their
duties in nursing care. There is no competition between the category of
candidates who are doing their regular nursing courses and the category of
candidates who are granted degrees and diploma certificates, by the fourth
respondent University.
13.
The learned Additional Advocate General has also submitted that those persons
who had obtained the B.Sc. degree and the Diploma Certificates, from the fourth
respondent University, would not be handling the patients, directly. In fact,
they would only be aiding the nurses who are fully qualified in nursing care,
having obtained full-fledged degrees, like the members of the petitioner
association. Therefore, the claims made on behalf of the petitioner association
that untrained and unqualified candidates, who are given the degrees and the
diploma certificates, by the fourth respondent university, and that they would
be carrying on the duties of the members of the petitioner Association, cannot
be sustained. He had also submitted that there are clear provisions in the
Tamil Nadu Dr.M.G.R Medical University Chennai Act, 1987, empowering the
university to institute Degrees, Diplomas and other academic distinctions.
Section 4 of the Act prescribes the objects of the University. Section 5 of the
Act enumerates the powers of the University. It includes the power to hold
examinations and to confer Degrees, Diplomas and other academic distinctions on
any person, who had pursued an approved course of study or training in a
college or a University laboratory or an approved institution.
14.
It has also been submitted that the candidates who obtained such Degrees and
Diploma Certificates would be persons who would assist the trained nurses in a
hospital or in other such places by performing general services, like making
beds, giving baths and recording the vital signs of the patients. Therefore, it
would not be open to the petitioner Association to state that such candidates
would be performing the same duties and functions like the members of the
petitioner Association. Even though some of the portions found in the syllabus
of the nursing courses, completed by the members of the petitioner Association,
may be overlapping with the subjects which are taught to the candidates who
would be given the Degrees and the Diploma certificates, by the fourth
respondent University, it cannot be said that the regular nursing courses and
the courses prescribed for the nurses aids are the same in their substance
and contents. Therefore, the claims made on behalf of the petitioner
Association are devoid of merits.
15.
The learned counsel had stated that the petitioner Association is not entitled
to file a writ petition, under Article 226 of the Constitution of India, to
claim that some of its fundamental rights have been infringed. In fact, even
the members of the petitioner Association cannot be held to be aggrieved
parties. No harm or injury could be said to have been caused by the granting of
the degrees and the Diploma Certificates to those who had undergone certain
basic training in nursing care, in order to aid the qualified nurses, who had
undergone the full-fledged nursing courses. Thus, it could be seen that there
could be no competition between those who had completed their regular nursing
course and those who had completed such basic training in certain allied health
sciences. Therefore, the present writ petition filed by the petitioner
Association is not maintainable and it is also liable to be dismissed on the
ground that it is devoid of merits.
16.
The learned counsel had relied on the following decisions in support of his
contentions:
In
Mahinder Kumar Vs. Union of India, 1995 (1) SCC 85, it has been held that a
writ petition filed by an association is not maintainable, as it has no
fundamental right which could be protected by the courts of law.
In
T.N.Outdoor Advertising Association and another Vs. Union of India and others,
AIR 2003 Madras 240, it has been held that an association is not a citizen, as
defined under Article 19 of the Constitution of India. Therefore, the writ
petitions filed by the associations, partnership firms, business concerns and
companies, on the basis of violation of fundamental rights, are not
maintainable.
In
Cable Operators' Association of Tamizhagam Vs. The Commissioner of
Police/Authorized Officer, 2011 (4) CTC 369, a person shall have no locus
standi to file a writ petition if he is not personally affected by the impugned
act. Further, he cannot be said to be an aggrieved person, if his fundamental
rights have not been invaded or when no imminent danger exists for the invasion
of such rights.
17.
In view of the submissions made by the learned counsels appearing on behalf of
the petitioner, as well as the respondents, and on a perusal of the records
available, it is clear that the members of the petitioner Association cannot be
said to be aggrieved by the act of the fourth respondent in granting certain
Degrees and Diploma Certificates to those candidates who had completed certain
courses prescribed by the University. Such courses prescribed by the fourth
respondent University are not full-fledged nursing courses, as admitted by the
respondents. Even though certain subjects found in the regular nursing courses
and in the courses approved by the fourth respondent university may be similar
in nature, it cannot be said that the Degrees and the Diploma Certificates
granted by the fourth respondent University, in respect of the courses relating
to nurses aids, are equivalent to the regular nursing courses completed by the
members of the petitioner association.
18.
It has been stated, categorically, by the fourth respondent University that the
candidates obtaining the degrees and the diploma certificates, from the fourth
respondent University, will not be regular nurses like the members of the
petitioner Association. They would only function as aides to the regular nurses
in the performance of their regular duties. It is also noted that there are
certain clear advantages for those candidates, who have completed their courses
which had been recognized by the second and the third respondent Councils, as
contemplated under the relevant provisions of the Indian Nursing Council Act,
1947, and the Tamil Nadu Nurses and Midwives Act, 1926
19.
It is the contention of the learned counsel appearing on behalf of the fourth
respondent University that Section 10 of the Indian Nursing Council Act talks
about recognition of certain courses relating to nursing care. However, the
said section has not used the word `shall' to indicate that it is mandatory in
nature. Therefore, there is no statutory obligation on the part of the fourth
respondent University to issue the Degrees and Diploma Certificates, relating
to the courses which are having some relationship to the various aspects of
nursing care. In such circumstances, it cannot be said that the Degrees and the
Diploma Certificates granted by the fourth respondent University are nursing
courses, which are found in the schedules annexed to the said Act.
20.
It is also noted, from the averments made in the counter affidavit filed on
behalf of the fourth respondent University, that the courses for which Degrees
and Diploma certificates are being issued by the fourth respondent University
are not akin to the nursing courses, said to have been completed by the members
of the petitioner Association. As such, it is clear that the petitioner
Association cannot be said to be an aggrieved entity for maintaining the
present writ petition. In such circumstances this court is of the considered
view that the present writ petition, filed by the petitioner Association, is
not maintainable and therefore, it is liable to be dismissed. Hence, it is
dismissed. Consequently, connected miscellaneous petition is closed.
Index:Yes/No -8-2013
Internet:Yes/No
csh
To
1. The Tamilnadu Dr.MGR Medical University,
Rep. By its Registrar,
No.69, Anna Salai,
Guindy, Chennai-600 032.
2. The Christian Medical College Vellore,
Rep. By its Director,
Ida Scudder Road,
Vellore-632 004.
3. MMM College of Health Sciences
(A Unit of Madras Medical Mission),
No.9, Block No:11, Kannadasan Salai,
Mogappair East, Chennai-600 037.
M.JAICHANDREN,J.
csh
Writ Petition No.3559 of 2012
-8-2013
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