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Judgment
M. Jaichandren, J.—Heard the learned counsel appearing for the petitioner, as well as the learned counsels appearing on behalf of the
respondents. This writ petition has been filed praying that this court may be pleased to issue a Writ of Mandamus for bearing 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.
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.
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.
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
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.
B.Sc. Accident and Emergency case Technology
B.Sc. Physician Assistant
B.Sc. Critical case Technology
B.Sc. Cardiac Technology
The said courses have been commenced under the guise of B.Sc. degree courses.
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.
The learned counsel appearing on behalf of the petitioner had relied on the decision of the Supreme Court, in State of West Bengal and Others
Vs. The Committee for Protection of Democratic Rights, West Bengal and Others, , 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.
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.
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.
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.
10.1. 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.
10.2. In Association of Management of Private Colleges Vs. All India Council for Technical Education and Others, , it has been held that a writ
petition filed by an association is maintainable.
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.
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.
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.
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.
The learned counsel had relied on the following decisions in support of his contentions:
In Mahinder Kumar Gupta and Others Vs. Union of India (UOI), Ministry of Petroleum and Natural Gas, 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 Tamil Nadu Outdoor Advertising Association and Swamy''s Publicity Service Vs. Union of India (UOI), The Divisional Railway Manager
(Commercial), Southern Railway and The Senior Divisional Commercial Manager, Southern Railway, , 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, Kal Cables Private Limited and Sumangali
Cable Vision, 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.
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.
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.
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. 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.