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2018 Supreme(Cal) 53
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
JYOTIRMAY BHATTACHARYA, ARIJIT BANERJEE, JJ.
Sonali Nandi - Appellant
Versus
The West Bengal Nursing Council & Ors. - Respondent
MAT 596 of 2017 and CAN 4235 of 2017
Decided on : 12-01-2018
For the Appellant : Mr. Mukul Lahiri, Adv., Mr. Prasenjit Burman, Adv., Mr. Sovan Bera, Adv., Ms. Puja Beriwal, Adv., Mr. Sushovon Roy, Adv., Ms. Anika Moitra, Adv.
For the State : Mr. Sirsanya Bandopadhyay, Adv., Mr. Subhendu Sengupta, Adv., Mr. Pratik Dhar, Adv., Mr. Ritwick Pattanayak, Adv. Mr. Somnath Mazumdar, Adv., Mr. Samir Halder, Adv., Ms. Cardina Roy, Adv.
The main legal point established in the judgment is that the appellant qualified for enrollment in the B.Sc Nursing Course based on the eligibility criteria, and the Council exceeded its authority in raising the issue of her eligibility for enrollment.
Headnote:
Nursing Eligibility - Bengal Nurses Act - Section 18 - Summary of Acts and Sections: The court discussed the eligibility criteria for enrollment in the B.Sc Nursing Course as per the JENPARH Brochure and the West Bengal Council of Higher Secondary Education Regulations. It highlighted the absence of prescribed conditions under Section 18 of the Bengal Nurses Act and emphasized that the appellant qualified for enrollment based on the eligibility criteria. The court also addressed the Council's authority to inquire into the appellant's eligibility and the practical implications of her deficiency in the Chemistry theoretical paper at the Higher Secondary level.
Fact of the Case:
The appellant completed the B.Sc Nursing Course and applied for registration as a nurse with the West Bengal Nursing Council. Her application was rejected based on the grounds of not fulfilling the eligibility criteria for the B.Sc Nursing Course.
Finding of the Court:
The court found that the appellant qualified for enrollment in the B.Sc Nursing Course based on the eligibility criteria and that the Council exceeded its authority in raising the issue of her eligibility for enrollment. The court also emphasized the practical implications of the appellant's deficiency in the Chemistry theoretical paper.
Issues: The issues included the eligibility criteria for enrollment in the B.Sc Nursing Course, the Council's authority to inquire into the appellant's eligibility, and the practical implications of the appellant's deficiency in the Chemistry theoretical paper.
Ratio Decidendi: The court held that the appellant qualified for enrollment in the B.Sc Nursing Course based on the eligibility criteria and that the Council exceeded its authority in raising the issue of her eligibility for enrollment. The court also emphasized the practical implications of the appellant's deficiency in the Chemistry theoretical paper.
Final Decision: The appeal was allowed, and the West Bengal Nursing Council was directed to grant registration to the appellant as applied for, upon payment of prescribed fees if such fees have not been paid already.
ARIJIT BANERJEE, J.
1. The petitioner successfully completed the B.Sc Nursing Course conducted by the West Bengal University of Health Sciences. She then applied for registration as a nurse with the West Bengal Nursing Council (in short ‘Council’). By a communication dated December 05, 2016, the Council rejected such application on the ground that she did not have the requisite qualification for being admitted to the said course. Being aggrieved, the petitioner approached this Court by filing WP No. 1113 (W) of 2017. By a judgment and order dated March 22, 2017, the learned Single Judge dismissed the writ application. Being aggrieved, the writ petitioner/appellant is before us by way of the present appeal.
Submission of the Appellant:—
2. The petitioner passed the Higher Secondary Examination conducted by the West Bengal Council of Higher Secondary Education in the year 2011. She wanted to become a nurse. JENPARH is an entrance test conducted by the West Bengal Joint Entrance Examination Board for enrolment on, inter alia, the B.Sc (Nursing) Course. The petitioner participated in JENPARH-2012 and was successful. She got herself admitted to the College of Nursing Asia Heart Foundation which is affiliated to the West Bengal University of Health Sciences. She also got herself registered with the said university in the year 2012.
3. After having completed the first three years of the B.Sc Nursing Course successfully, the petitioner received a communication dated 26th April, 2016 from the Asia Heart Foundation which read as follows:—
“With reference to the series of discussions we had with you and the opinion obtained from the competent Authority, You are hereby notified that on account of non-compliance as per the provision of JENPARH your B.Sc (N) course is hereby discontinued with immediate effect.”
4. The reason for issuing of such communication, we are told, was the stand of the university that since the petitioner did not have pass mark in Chemistry in the Higher Secondary Examination, she was not eligible to be enrolled on the B.Sc Nursing Course.
5. The petitioner challenged such communication by filing W.P No. 8141 of 2016. By a judgment and order dated 13th May, 2016, the impugned communication was set aside by the learned Single Judge by directing the authorities to permit the petitioner to pursue her course till its completion and to treat her as a bona fide student of the course. We are apprised that there was no appeal from the said judgment and order.
6. The petitioner successfully completed the B.Sc Nursing Course. She then applied to the respondent-council for being registered as nurse without which she would not be able to get a job in any Hospital or Nursing Home. Her application was, however, rejected by the Council. She applied under the Right to Information Act for being informed the reasons for which her application was rejected. By a written communication dated 5th December, 2016, the Council informed her that her application was rejected for not fulfilling the criteria of Section 19(c) of the Bengal Nurses Act, 1934 (in short ‘the said Act’) and also for not fulfilling the eligibility criteria for undergoing the B.Sc (Hons) course as laid down by the Indian Nursing Council as well as the JENPARH Brochure.
7. Mr. Lahiri, learned senior counsel appearing for the petitioner submitted that it would appear from the order impugned before us that the Council conceded at the hearing before the learned Single Judge that section 19 of the said Act has no manner of application to the facts of the instant case. Hence, the only point that remains is whether or not the Council was justified in rejecting the petitioner's application for registration on the ground that she did not fulfill the eligibility criteria for undergoing B.Sc Nursing Course.
8. Mr. Lahiri referred to section 18 of the said Act which provides, inter alia, that nurses, midwives and health visitors who have undergone the course of training, have passed
