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Judgment
Alok Sharma, J.—The petitioner institute has challenged the order dated 22-4-2014 passed by the Rajasthan University of Health Sciences (RUHS) whereby its application for affiliation to the RUHS for its Post Basic B.Sc. (Nursing) Course for the Academic Session 2013-14 was rejected on the ground that it was beyond the statutorily prescribed date even if reckoned with late fee charge and penalty. A direction to the RUHS has also been sought for the affiliation of the petitioner institute''s M.Sc. (Nursing) Course in the academic session 2013-14 and 2014-15. But this later prayer of the petitioner Institute has been abandoned by counsel with liberty to re-agitate the issue independently, if so required, by way of a separate writ petition. The liberty sought is granted.
Consequently this judgment would only address the purported right of the petitioner institute for the grant of affiliation for the academic session 2013-14 for its Post Basic B.Sc. (Nursing) Course.
Affiliation afresh to the RUHS of any college/institute or for an additional course or for extension of a pre-existing provisional affiliation is governed by Ordinance 73 of the University of Rajasthan Ordinance (hereinafter ''the Ordinance 73''), which has been adopted by the respondent RUHS. Ordinance 73 provides that a college applying for affiliation shall make a written application through proper channel to the Registrar accompanied with the necessary fee as prescribed under the Ordinance not later than 15th May of the preceding academic year for the recognition (affiliation) sought. Thereafter an application can be entertained between 16th May and 30th June provided valid special reasons for the delay to the satisfaction of the University authorities are made out and the application is accompanied with a late fee and penalty equal to amount of affiliation fee. Yet in respect of case of extension of provisional affiliation, an application can be accepted again as a special case at the discretion of the University even after 30th June, but not later than the date of commencement of the academic session. Ordinance 73, therefore covers all issues of affiliation.
Mr. Mahendra Gaur, learned counsel for the petitioner has submitted that the University of Rajasthan Ordinance cannot attract to the case of the petitioner institute for affiliation with the RUHS in view of the fact that the RUHS is an independent autonomous statutory body constituted under the Rajasthan University of Health Sciences Act, 2005 (hereinafter ''the 2005 Act''). He submits that Section 39 of the 2005 Act provides for making of ordinances by the University itself, inter alia in respect of myriad matters such as those pertaining to courses of study, admission or enrollment of students, fee, qualifications or conditions requisite for any degree, diploma, certificate or fellowship. The manner of making ordinances is also set out in Section 40 of the 2005 Act. Counsel submits that the RUHS was/is under an obligation to promulgate its own ordinances and it does not lie within its jurisdiction to adopt ordinances of the University of Rajasthan. He submitted that Ordinance 73 is therefore quite irrelevant to the issue before this court.
Mr. M.A. Khan, learned counsel for the respondent RUHS submits that no such case has been set out in the writ petition, and therefore it cannot be allowed to be so argued in the course of hearing of the writ petition. He further submits that the 2005 Act does not prohibit the RUHS from adopting the ordinances of the University of Rajasthan or otherwise. And that consequently the adoption of the ordinances of the University of Rajasthan by the RUHS cannot be stated to be illegal. Further in any event the RUHS has adopted the University of Rajasthan Ordinances in accordance with law and has been so functioning under the Ordinances to the extent adopted since its inception. The petitioner institute has submitted to the said regime in the past as also is presently and the argument raised by the counsel is quite evidently one of desperation.
In my considered view, there is no substance in the submission of the counsel for the petitioner that the ordinances of the University of Rajasthan cannot attract to the issue for the determination of the issue of affiliation of the petitioner institute for its Post Basic B.Sc. (Nursing) Course with the RUHS. Under Section 23(k) of the Act of 2005 the Board of Management of the University has the power to make statutes, ordinances and regulations for the smooth functioning of the University. This power to make ordinances'' includes the power to adopt any ordinance. And this has been so done in adopting the University of Rajasthan Ordinances to the extent deemed fit by the Board of Management of RUHS. There is thus no force in the submission of Mr. Gaur on this count.
That being the obtaining legal position, Ordinance 73 of the University of Rajasthan as adopted by the RUHS, is to be considered for determination of the rights of the petitioner institute for affiliation of its Post Basic B.Sc. (Nursing) Course with the RUHS. It is trite that the writ jurisdiction of this court under Article 226 of the Constitution of India can be invoked to agitate legal and fundamental rights allegedly contravened/breached or in danger of so being. Ordinance 73 of the University of Rajasthan, as referred to above, makes it evident that affiliation of a college/or qua an additional course or for extension of affiliation could only be for the following academic session and the application for the purpose has to be made by 15th May of the preceding academic session for which the affiliation is sought. No doubt in certain cases, for special reasons an application for affiliation can be entertained between 16th May and 30th June preceding the academic session. And in cases of extension of affiliation, on payment of late fee and penalty as prescribed but only upto the date of commencement of the academic session. That is the final terminal point with no further room whatsoever. And this is emphasised by Clause 3 of the Ordinance 73 categorically prohibiting retrospective affiliation. Any affiliation after the commencement of the academic session qua cases of extension of affiliation as sought by the petitioner institute would clearly be retrospective and illegal. Similarly would be grant of affiliation in the first instance to a college or in respect of an additional course, where the affiliation is granted after 30th June preceding the academic session in issue. And law would stand breached in such situations warranting corrective action in setting aside such affiliation at the hands of a competent court.
The academic session 2013-14 in RUHS is stated to have commenced on 1st August, 2013. That is disputed by counsel not on the basis of any pleadings, but on a bald assertion. In any event the dispute with regard to commencement of academic session 2013-14 as is sought to be raised by counsel for the petitioner would be of little relevance in view of the fact that the petitioner college applied for the affiliation of its Post Basic B.Sc. (Nursing) Course with the RUHS only on 12th February, 2014. It is not the petitioner''s case, nor could ever be that the academic session 2013-14 commenced after 12th February, 2014.
Mr. Gaur, however faced with the adverse legal position in the matter, invoked equity. He would submit that the application for affiliation of the Post Basic B.Sc. (Nursing) Course with the RUHS was made on 12th February, 2014 in extraordinary circumstances not the making of the petitioner. He submits that in seeking recognition of the respondent Indian Nursing Council (INC) for the academic session 2013-14 the petitioner college was oppressed by the officers of the respondent INC and in spite of having all requisite infrastructur right to recognition in accordance with law for the Post Basic B.Sc. (Nursing) Course it was denied on specious grounds only for reasons of the petitioner college not giving in to the demand for unlawful gratification made by the officers of the respondent INC. It is submitted that being fed up by the sleaze of the officers of the respondent INC, the petitioner approached the Anti Corruption Bureau Rajasthan and facilitated a trap by them. Thereupon one Mahesh Chand Sharma, an agent (allegedly) of T. Dilip Kumar Chairman of INC, was caught red handed with Rs. 5 lacs bribe. Whereupon FIR No. 289/2013 was lodged and investigation commenced. A challan has been filed by the ACB against Mahesh Chand Sharma and another while investigation kept pending against the Chairman of INC Mr. T. Dilip Kumar under Section 173(8) Cr.P.C. The issue of recognition of the petitioner institute''s Post Basic B.Sc. (Nursing) Course meanwhile remained unattended. In the circumstances aggrieved of the non grant of recognition for the Post Basic B.Sc. (Nursing) Course of petitioner college by the respondent INC, the petitioner approached this court by way of writ petition No. 13894/2013. This court vide order dated 25-9-2013 directed the respondent INC to consider the case of the petitioner college for grant of recognition for its Post Basic B.Sc. (Nursing) Course afresh within a period of one month from the date of receipt of certified copy of the said order. Yet in spite of the order dated 25-9-2013 the petitioner college was not inspected for determination of availability of requisite infrastructure for grant of recognition for Post Basic B.Sc. (Nursing) Course by the respondent INC. A contempt petition No. 1164/2013 followed. Therein this court was pleased to call for the explanation of contemnors vide order dated 15-1-2014, 24-1-2014 and 3-2-2014. It has been submitted that the INC thereupon inspected the petitioner college on 18-1-2014 and vide order dated 21-1-2014 granted recognition for the Post Basic B.Sc. (Nursing) Course for the academic session 2014-15. On the petitioner college''s protestation that the direction for reconsideration under order dated 25-9-2013 pertained to the academic session 2013-14, vide letter dated 6-2-2014 recognition for the Post Basic B.Sc. (Nursing) Course for the year 2013-14 was granted. The petitioner college was thereafter admitted 25 students for the Post Basic B.Sc. (Nursing) Course for the academic session 2013-14 on 6-2-2014. It is submitted that in these circumstances the application for affiliation of the Post Basic B.Sc. (Nursing) Course with the RUHS was filed on 12-2-2014.
Counsel for the petitioner submits that in the uncontroverted facts detailed above, it is evident that gross injustice has been done to the petitioner college owing to its protest against the corruption of the officers of respondent INC and their touts. The delay in grant of recognition for the Post Basic B.Sc. (Nursing) Course for the academic session 2013-14 by the INC has been occasioned for reason of the petitioner institute standing upto corruption not only alleged, but proved with the filing of a challan. Counsel submits that if the petitioner college is not now affiliated with the RUHS for the Post Basic B.Sc. (Nursing) Course for the academic session 2013-14 it would bring to naught the petitioner college''s fundamental right to carry on trade and business in education. Counsel submits that this court under Article 226 of the Constitution of India has vast equitable jurisdiction which should be invoked to encourage and not discourage the petitioner institute in its priority and standing up against corruption. It is submitted that in fact 25 students have been admitted to the Post Basic B.Sc. (Nursing) Course in petitioner institute for the academic session 2013-14, of which 9 students have got themselves impleaded as party to this writ petition. In the event the writ petition were to fail their valuable rights would be adversely affected.
Mr. M.A. Khan, learned counsel for the RUHS has submitted that this court in exercise of its powers under Article 226 of the Constitution of India cannot transcend law even though without doubt it has equitable jurisdiction. It is well settled by the Hon''ble Supreme Court of India, as is also quite obvious on the face of it, that no order interim or final can be passed against obtaining legal provisions, inasmuch as the very foundation of the equitable extraordinary jurisdiction of this court under Article 226 of the Constitution of India is for protection of legal and fundamental rights. It is submitted that until the petitioner institute can satisfy this court of any of its legal or fundamental right being contravened, no succour should flow. Equity cannot supplant the law, it can only supplement it. He submits that the respondent RUHS cannot be directed to violate Ordinance 73(3) of the Rajasthan University, prohibiting retrospective affiliation, as adopted by its Board of management under Section 23(k) of the Act of 2005. The petitioner institute has been unable to make out any case for its affiliation [Post Basic B.Sc. (Nursing) Course] under the parameters prescribed under ordinance 73 aforesaid, counsel submitted.
Ms. Upadhyay, learned counsel for the respondent INC has not much to state in view of the fact that the petitioner institute, for the present, has sought no direction against respondent INC with regard to M.Sc. (Nursing) course with liberty to pursue the issue by way of separate writ petition. But she has stoutly countered allegations of wrong doing or corruption by officers of INC and pointed out that none of them have been challaned. And she submitted that there is nothing which can be done about a pending investigation under Section 173(8) of Cr.P.C. 1973 or otherwise which is a prerogative of an investigating agency.
Heard learned counsel for the parties, perused the material available on record, and evaluated Ordinance 73 of the Rajasthan University as adopted to by the respondent RUHS.
I am of the considered view that this writ petition is liable to be dismissed. The petitioner college has failed to make out a case of contravention of its legal or fundamental rights which is the foundation of invoking Article 226 of the Constitution of India. Even though right to education is indeed a fundamental right, it is not absolute and restricted by the governing statute in a reasonable manner. In any event Ordinance 73(3) is not under challenge. To conduct Post Basic B.Sc. (Nursing) Course affiliation is essential. That affiliation is to be as per the ordinances of the affiliating university. Governing statue for the purpose of present writ petition is Ordinance 73 of the Rajasthan University as adopted to by the RUHS. Under the Ordinance 73 the petitioner college was to make for its Post Basic B.Sc. (Nursing) Course an application for extension of affiliation, with the respondent RUHS, within the time provided for i.e. prior to the commencement of the academic session 2013-14. It is an admitted fact that within the time prescribed under Ordinance 73, no application for extension of affiliation for the Post Basic B.Sc. (Nursing) Course was made by the petitioner institute i.e. prior to 1st August, 2013. The application was made only on 12-2-2014. It is inconceivable, and it has also not been asserted that the academic session 2013-14 commenced 13-2-2014 or thereafter.
In my considered opinion the application for extension of affiliation by RUHS for the Post Basic B.Sc. (Nursing) Course could only be filed and extended if good reason for the delay were to be found, upto the day before the commencement of the academic session 2013-14. Thereafter the prohibition under clause 3 of the ordinance 73 sets in. The extraordinary facts of the petitioner''s case as detailed above cannot allow this court to breach the prohibition in law under Ordinance 73(3) and roll back time. Recompensance, to a citizen/institute wronged in my considered opinion cannot be in breach of obtaining law-Such a course would open a pandora''s box and warrant disregard of law with reference to the special equities of cases pleaded by the aggrieved from time to time, rendering the very law incapable of definition and certainty. It is well settled that the certainty of law is its most unnegotiable attribute as therein lies the foundation of the Rule of Law. To my mind recompense for the petitioner institute being denied availing academic session 2013-14 for its Post Basic B.Sc. (Nursing) Course without just cause, as alleged, can be had by way of a properly constituted suit for damages with necessary averments and in the event of opposition thereto, followed by requisite evidence on issues framed. In the event of such a suit being filed it be disposed of within twelve months of service on the defendants impleaded. The said suit, if filed, be decided on its own merits without in any manner being influenced by this judgment.
The writ petition stands dismissed accordingly.