1. ' SYED HASAN AZHAR RIZVI, J.---This Constitutional Petition has been preferred by the petitioner Pride School of Nursing seeking following prayers:- "(1) That the respondent No,2 may kindly be directed to recognize the petitioner school, Pride School of Nursing, as well as allow the petitioners; 25 students 4th Batch of the year, 2009, who have already completed all the formalities and the courses, are entitled to sit/take the supplementary examination which is going to be held by the respondent No,4 within the 2nd week of March, 2011.
(2) That the petitioner may kindly be allowed to raise any ground/grounds at the time of final hearing of the petition.
(3) That there is no other efficacious and speedy remedy available to the petitioner, hence this petition.
(4) That the petitioner had not filed any other petition on the same subject, hence this petition.
(5) That the proper court-fee has been affixed.
(6) Any other relief/reliefs this Hon'ble Court may deem fit, under the circumstances."
2. Brief facts of the case are that petitioner started School in September, 2006 with the permission of the Government of Sindh, Health Department and enrolled 55 students for male nursing program. The petitioner further enrolled 55 students for the year 2007 thereafter both the classes, first year and second year appeared in the Board Examination in September, 2008. The respondent No,2 Pakistan Nursing Council authorized under the rules and regulations for Nursing Educational Institutions to inspect/approve the nursing school. The petitioner had already given admission to the 4th Batch of the students under the condition mentioned in the admission form for examination for fresh candidates only. The respondent No,2 informed the petitioner vide letter dated 23-11-2009 that petitioner's Institution was inspected and certain deficiencies, were noticed viz: adhocism in training, less qualified teachers, no proper proof of building lease/rent and no record keeping. The respondent No,2 directed the institution not to enroll any new batch for RN Programme and rectification report should be submitted within six months for further action. Petitioner had already given the admission to the students in the 1st year in August, 2009 and the Classes started from 16- 9-2009, but the decision of respondent No,2 was communicated to the petitioner on 23-11-2009, therefore the said students have completed their training for the year, 2009 and were waiting for their examination.
2. ' Parawise comments were filed on behalf of respondents Nos.2 and 3. It has been stated that inspection team of respondent No,2 inspected the school and pointed out deficiencies which were communicated to the petitioner, but the petitioner inducted the students in the. Session of September, 2006 prior to approval from respondent No,2 and approached the Health Department for their enrollment. The petitioner again admitted the candidates without the permission and recognition of respondent No,2 in the session of. September, 2007 and approached the Health Department for their enrollment, but the Health Department warned the petitioner to get recognition within 3 months and in future further students should not be admitted till recognition by respondent No,2. The inspection was carried out by respondent No,2 and it was decided that the institute is not approved but enrolled students in second and third year were allowed to continue no further admission for 2009 batch and onward. It has been further stated that the Examination ' Form was designed for all the recognized Nursing Institution, which contains the schedule for submission of forms in Sindh Nurses Examination Board Karachi for the sake of information of Institutions. It has been stated that since the candidates were neither enrolled with the Board nor submitted their examination forms for Annual Examination hence they were not eligible to appear in Supplementary Examination.
3. ' We have heard Mr. Ch. Mohammad Jamil learned, counsel for the petitioner, Mr. Muhammad Sarwar Khan, learned A.A.-G. For respondent No,1, Mr. Liaquat Ali Khaskheli, learned counsel for respondents No,2 and Mr. Nazar Akber, learned Deputy Attorney General: ' Mr. Ch. Muhammad Jamil Advocate for the petitioner has argued that petitioner established Prides School of Nursing with the permission of the Government of Sindh, Health Department. He argued that the respondent No,2 inspected the petitioner's institution and pointed out certain deficiencies, which is clearly indicated that the school was not closed and the students who were regular could sit for exam through Sindh Nurses Examination Board Karachi. He further urged that all the deficiencies pointed out by the respondent No,2 have been rectified. He also made reference to the earlier petitions wherein this Court had allowed the students to sit in annual examination. He contended that the students who were given admission before any order or decision of the respondent No,2 have the right to complete their education and if such permission is not granted their future shall be in jeopardy. Learned counsel lastly argued that petitioner is entitled to continue functioning under Notification No,So(ME)8-10(F)/2007 dated 19-5-2007, which is still in the field and it has not been cancelled by any competent authority and right accrued to the petitioner cannot be withdrawn without any reason. He therefore prayed that students of 4th batch of the year, 2009, who have completed all the formalities and courses, are entitled to sit in supplementary examination.
4. ' In rebuttal, Mr. Liaquat Ali Khaskheli learned counsel for the respondents Nos.2 and 3 has argued that petitioner school started without formal approval of respondent No,2 PNC, as the starting of nursing training was subject to approval of respondent No,2, but the management of the petitioner did not follow the instructions of Health Department. He argued that various inspections were carried out in all the inspections the petitioner's institution was found deficient and such shortcomings were communicated to the petitioner for rectification and stopped further induction of students in any case, but the petitioner failed to do so and induct fresh students. He also argued that no other Nursing School has made induction after clear instruction given by respondent No,2 and practice of doing mala fide induction of students without having legal status from the regulatory body is without law. He also contended that induction of 4th batch was totally illegal and mala fide as induction was made by Institution on August', 2009 which was the violation of PNC Rules as the Institutions are bound to start admissions from September and finalized till October. He also contended that the induction was illegal as the institution was not recognized and all the enrolled students were adjusted and beyond permitted number of students was not the responsibility of respondent No,2. He, therefore, prayed that petitioner is not entitled for any relief and the petition is liable to be dismissed.
5. ' Messrs Nazar Akber learned Deputy Attorney-General and Muhammad Sarwar Khan learned A.A.- G. Sindh have supported the arguments advanced by learned counsel for respondents Nos. 2 and 3.
6. ' We have given due consideration to the argument's advanced by the learned counsel for the parties and perused the material available on record, which goes to show that the petitioner sought relief to allow the students of 4th batch to sit in supplementary examination, but as per rules of respondent No,2 if a nursing/midwifery or LHV candidates submitted Annual Examination forms to NEB and Roll number is allotted but does not sit in the examination by any reasons, he/she will be eligible to appear in supplementary examination but if the candidate does not submit Annual Examination Form will not be eligible to appear in Supplementary Examination. The record further shows that petitioner was directed to rectify the deficiencies pointed out by respondent No,2 and further directed to stop induction, but the petitioner has failed to comply with the directions of respondent No,2 and inducted the students. The contention of the learned counsel for the petitioner that the petitioner's institution is recognized with the respondent No,2 is also belied from the letter dated 6-10-2009 addressed to Registrar PNC by section Officer (ME) Government of Sindh. For convenience sake, the same is reproduced as under:-- {{TABLE}} ' "NO. SO(ME)8-10/200 GOVERNMENT OF S1NDH HEALTH DEPARTMENT Karachi dated 5th September, 2009 The Registrar, Pakistan Nursing Council National Institute of Health, Chak Shahzad, Islamabad.
7. Subject: MIGRATION SCHOOL OF SCHOOL OF P.N.C, OF STUDENT NURSES FROM PRIDE NURSING KARACHI TO NY OTHER NURSING WHICH IS RECOGNIZED BY {{TABLE}} ' I am directed to the Nursing students of Pride School of Nursing have requested that the institute is not recognized by Pakistan Nursing Council as yet. At the time of admission the owner of the School had assured them that they will get it registered with the council but in vain. The first batch of students will complete 3 years training in September, 2009 thus only one month is left behind to appear in Final Nursing Exan ination. Eleven students of second year and 32 students of 3rd year have requested that, they may be migrated from this Institution to another recognized institution.
8. So that they appear in examination through recognized School of Nursing.
9. ' Since the institution is still unrecognized and the students intend migration to any other recognized school. The second year students desired migration in New Life School of Nursing Karachi.
10. ' You are requested to please give your comments/N.O.C. In the matter to this department to further process the case.
11. (Sd.)
12. (DR. A. AZIZ MEMON)
13. SECTION OFFICER (ME) For Secretary to Govt. Of Sindh ' No, SO(ME)8-10/2009 Karachi dated 5th September, 2009 ' A copy is forwarded for information to the Director Nursing Government of Sindh, Karachi.
14. (Sd.)
15. SECTION OFFICER (ME)"
16. ' It has been noticed that during the year 2009-2010 some of private nursing institutions of Karachi which were also deficient and lacking the basic requirement submitted their affidavits with regard to non-induction of students in sessions 2010 and respondent No,2 issued letter to Nightingale SON, Khyber SON and Angel SON Karachi and their students were accordingly allowed to appear in the examination in the light of committee decision, but the petitioner did not submit any kind of affidavit on time and inducted the students in August instead of September the starting month of session, which shows clear mala fide on its part. With regard to the reference of the order passed in the earlier petitions, it is observed that the same relates to non-attendance and the point involved in this petition is quite different. Prima facie, it appears that petitioner's institution is not recognized by respondent No,2 and further the petitioner was directed not to induct fresh students, the petitioner illegally, malafidely and in order to gain money clearly violated the decision made by respondent No,2. Under the circumstances, since the candidates are neither enrolled with the Board nor submitted their examination forms for Annual Examination, therefore, they are not eligible to appear in Supplementary Examination. However, the candidates/students, who have lost their one year due to the fault/negligence on the part of the petitioner institution, are at liberty to seek appropriate remedy available under the law, if they so advised.
17. ' Foregoing are the reasons for our short order dated 22-2-2011.