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Hyderabad-Karnataka Nursing Management Associate HIG-14, Kalabuaragi v/s Karnataka State Nursing Council No.71, Nightingale Towers, Bangalore & Another

    Writ Petition No. 226170 of 2020 (EDN-RES)

    Decided On, 15 December 2020

    At, High Court of Karnataka Circuit Bench OF Kalaburagi


    For the Petitioner: Avinash A. Uplaonkar, Advocate. For the Respondents: R1, Sumana Baliga, R2, Shivakumar Kalloor, Advocates.

Judgment Text

(Prayer: This Writ Petition is filed under Articles 226 and 227 of the Constitution of India praying to issue a writ of mandamus directing the respondent No.1 to consider the letter dated 05.06.2020 and thereby order for extension of submitting the original records by another 3 months; and etc.)1. Petitioner herein claims to be the registered Society under the Provisions of Karnataka Societies Registration Act, 1960 and the object of the Society is to unite all the Nursing Colleges in the Hyderabad-Karnataka Region as its Members to effectuate the grievance meted out by them, as well as, to promote post- college Nursing education so also to promote efficiency through co-operation of Members of the Association in the maintenance of Nursing Institutions. It is further stated in the writ petition that the first respondent herein has issued Circular dated 25th October, 2020 produced at Annexure-B, whereunder the first respondent directed all the nursing institutions in the State of Karnataka to submit the list of students admitted for General Nursing and Midwifery (for short 'GNM) Course through their User ID and Password by 18th November, 2019 in respect of the Academic Year 2019-20. Thereafter, the first respondent has issued revised Circular dated 18th November, 2019 produced at Annexure-C, extending the period of submission of list of candidates admitted to GNM Course along with Original Marks- cards, till 31st December, 2019, as per Annexure-C. In the meanwhile, the second respondent-Board has issued one more circular dated 21st December, 2019 as per Annexure-D directing the Nursing Institutions to upload the list of candidates admitted for GNM Course by 31st December, 2019 along with fee of Rs.500/- for the purpose of Registration of Students in the Board. In the meanwhile, due to COVID-19 pandemic, some of the Nursing Institutions have not uploaded the list of students to the Respondent-authorities and accordingly, the respondent No.1 has issued Annexure-E dated 29th May, 2020 extending the date of renewal of the Institution and further stated that, same had to be uploaded by 15th June, 2020. It is further stated in the writ petition that, the first respondent-Council has issued letter dated 30th May, 2020 as per Annexure-F stating that, some of the Institutions have not submitted 10th and 12th standard original marks cards of the students and directed the Institutions to submit through post or courier by 10th June, 2020. In the meanwhile, the petitioner-Association made a representation to respondent No.1-Nursing Council on 05th June, 2020, stating about the difficulty meted out by Private Management Nursing Institutions of Kalyana Karnataka Region that, some of the students in their Institutions had left to their native places in view of COVID-19 pandemic inter alia imposition of Section 144 in Kalaburagi by the State Government and taking into account these aspects of the matter, the petitioner- Association requested the first respondent herein to extend the date for furnishing of the details relating to admission of the students for the Academic Year 2019-2020 as per Annexure-G. Despite aforesaid representation dated 05th June, 2020 addressed by the petitioner-Association to the respondents herein, the respondent-authorities have issued a provisional time-table dated 23rd June, 2020 evidencing that examination of Diploma in General Nursing would commence from 01st September, 2020. In view of non-consideration of the representation dated 05th June, 2020 produced at Annexure-G by the respondent-authorities and on the other hand, apprehension of issuance of time-table for conducting examination for the Academic Year 2019-2020, the present writ petition is filed.2. Shri Avinash A. Uplaonkar, learned counsel appearing for the petitioner-Association submitted about the difficulties meted out by various institutions of Hyderabad-Karnataka Region wherein most of the students hail from different States and in view of COVID-19 pandemic, it is difficult for the Institutions to secure the presence of students and hence the Institutions are finding it difficult to upload the relevant details as directed by the respondent-authorities and in that view of the matter, learned counsel for the petitioner submitted that a writ of mandamus be issued to the respondent-authorities to consider the representation dated 05th June, 2020.3. Smt. Sumana Baliga, learned Advocate appearing for the first respondent submitted that the respondent No.1, by its revised Circular dated 25th October, 2019 (Annexure-B) made it clear stated that the Nursing Schools shall start admission process for the Academic Year 2019-2020 from 01st September, 2019 and complete the process by 31st October, 2019; and the said fact was made known to all the Nursing Schools of the State of Karnataka. She further submitted that as per the revised Circular Annexure-B, the last date for uploading the list of students admitted to the Nursing School was 18th November, 2019. However, the same was extended 31st December, 2019 as per Annexure-C and despite the extension being made to facilitate the Institutions to upload the list of students, some of the Institutions had not taken steps to upload the list of students even after extension of time and therefore, the petitioner- Association has no legal right to agitate the writ petition. She further argued that, the respondent-Council requires more time to meet the challenges of late admissions made by the students, inter alia conduct examination.4. Shri Shivakumar S. Kallur, learned counsel appearing for the second respondent reiterated the submissions made by the learned counsel for Respondent No.1, however, he fairly submitted that in the event if the petitioner-Association uploads the list of list of students within the reasonable period, the same would be considered by the respondent-authorities.5. Having heard the learned counsel appearing for the parties and on considerations of the grounds urged in the writ petition, it is not in dispute that the respondent-Council is an instrumentality of the State for the purpose of carrying out the provisions of Karnataka Nurses, Midwifes and Health Visitors Act, 1961, and the first respondent is a regulatory body to focus on the nursing provisions. It is also not in dispute that admissions in respect of GNM Course starts from First September of the respective academic year and end by 31st October of every year and examination would be conducted in the month of August. In respect of Academic Year 2019-2020, respondent-Council has authorised Nursing Institutions to start admission from 01st September, 2019 and fixed last date for Admission as 31st October, 2019. In this regard, respondent-Council has issued letter dated 25th October, 2019 as per Annexure-B stating that the last date for uploading list of students admitted for the academic year 2019-2020 as 18th November, 2020. Thereafter, the said period was extended till 31st December, 2019 as per Annexure-C. Perusal of the writ papers would indicate that the respondent-Council has extended the last date for submission of original documents till 10th June, 2020. However, in view of COVID-2019 pandemic, most of the students in the Hyderabad- Karnataka region were not able to register their names for admission, so also submit their relevant marks cards at the time of admission, and therefore, the petitioner-Association, considering the interest of students, requested the Nursing Council to extend the time for submission of list of students along with relevant documents. It is also not in dispute that though examination dated was fixed tentatively from 01st September, 2020 as per Circular Annexure-J issued by the respondent-Board, however, it is argued at the Bar that, examinations have not been conducted owing to COVID-19 pandemic and subsequent date of examination is not yet notified. The first respondent-Council has also admitted that already 695 out of 760 Nursing Schools have submitted the documents and taking into account the situation of COVID-19 pandemic, respondent-Council, being an instrumentality of the State, is under obligation to consider the case of petitioner- Association in view of postponing of examinations and fix the date for submission of list of students as well as production of relevant documents. Under these circumstances, taking into account the interest of students at large and the difficulties meted out by the Nursing Institutions in Hyderabad-Karnataka Region, this Court is of the opinion that there is no impediment for the respondent-Council to consider the representation dated 05th June, 2020 made by the petitioner-Association and fix the appropriate date for furnishing/uploading the list of students as well as production of relevant documents by affording reasonable opportunity to the Institutions.6. It is settled principle of law that the High Court, exercising its discretionary power under Article 226 of the Constitution of India, while administrating the law, is to be tempered with equity and if an equitable situation demands, the High Court would fail in its duty if it does not mould relief accordingly. The Hon'ble Supreme Court in the case of NARINDER S. CHADHA v. MUNICIPAL CORPORATION OF GREATER MUMBAI reported in AIR 2015 SC 756 held as follows:"It must never be forgotten that one of the maxims is that "equity follows the law". If the law is clear, no notions of equity can substitute the same."7. It is relevant to mention here that, while dealing with the provisions of Disaster Management Act, 2005 in respect of COVID-19, the Hon'ble Supreme Court, in the case of FICUS PAX PRIVATE LIMITED AND OTHERS v. UNION OF INDIA AND OTHERS reported in 2020(6) KAR.L.J 103 (SC), at paragraphs 33 to 35 has held as follows:"33. It cannot be disputed that the lockdown measures enforced by the Government of India under the Disaster Management Act, 2005, had equally adverse effect on the employers as well as on employees. Various Industries, establishments were not allowed to function during the said period and those allowed to function also could not function to their capacity. There can be no denial that lockdown measures which were enforced by the Government of India had serious consequences both on employers and employees. The period of Unlock having begun from 01.06.2020 and even prior to that some of the industries were permitted to function by the Government of India by different guidelines, most of the industries and establishments have re-opened or are re- opening, require the full workforce.34. As noted above, all industries/establishments are of different nature and of different capacity, including financial capacity. Some of the industries and establishments may bear the financial burden of payment of wages or substantial wages during the lockdown period to its workers and employees. Some of them may not be able to bear the entire burden. A balance has to be struck between these two competitive claims. The workers and employees although were ready to work but due to closure of industries could not work and suffered. For smooth running of industries with the participation of the workforce, it is essential that a via media be found out. The obligatory orders having been issued on 29.03.2020 which has been withdrawn w.e.f. 18.05.2020, in between there has been only 50 days during which period, the statutory obligation was imposed. Thus, the wages of workers and employees which were required to be paid as per the order dated 29.03.2020 and other consequential notification was during these 50 days.35. In most of the industries, factories and establishments, the workers are represented by Trade Unions or other Employees associations. The State is also under obligation to ensure that there is smooth running of industrial establishment and the disputes between the employers and employees may be conciliated and sorted out."8. It is further stated that, observations made by the Hon'ble Supreme Court in the case of CENTER OF PUBLIC INTEREST LITGATION v. UNION OF INDIA, reported in AIR 2020 SC 5075, the orders issued by the Union Government under the provisions of Disaster Management Act, 2005, is to be noted that, the word "disaster" mentioned in Section 12 of the said Act encompasses all disasters including COVID-19. In this connection, students happen to be the beneficiaries if the writ of mandamus is issued to the respondents to consider the representation mentioned at Annexure-G. However, I found force in the submission of the learned counsel for respondent No.1 that, the Institutions would take advantage of the sitution to fill up the unfilled seats even at later stage also. Justice of the

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case echoes that they cannot be permitted to go completely free, regardless of their arguable guiltiness and they need to render community service as a consideration for retaining the benefit of admissions to the Course, which, the Institutions have to follow.9. In that view of the matter, writ petition is allowed. Respondent-Council is directed to consider the representation dated 05th June, 2020 produced at Annexure-G made by the petitioner in the light of the discussions made above. The respondent-Council shall consider the above representation within ten days from today and pass appropriate orders in accordance with law taking into account the interest of the students at large, if not Institutions, and the result of the representation be intimated to the petitioner-Association.10. After dictating the Order, the learned counsel appearing for the petitioner submitted that till the representation addressed by the petitioner-Association to the respondent No.1 is not considered, Respondent-Authorities shall not precipitate the matter by issuing fresh Circular relating to announcement of time-table for ensuing annual examination. Accordingly, the respondent-authorities are directed not precipitate the matter till the consideration of representation made by the petitioner. Accordingly it is ordered.11. In view of the disposal of the main petition, IA.I of 2020 and IA.II of 2020 are disposed of.