' MUSHIR ALAM, C.J.--- No,1 Urgency granted.
2. Petitioners who claim to be admitted and studying in respondent No,5 institution Messrs Burraq School of Nursing, have sought directions against the respondents Nos.1 to 4 to allow the petitioners to be enrolled in the forthcoming session of examinations 2010-2011 scheduled to be held under the supervision of respondents Nos.2 to 4.
3. Briefly stated facts in the petition are to be that the petitioners got admitted in academic Session 2010-2011 in Burraq School of Nursing, however, in the admit card placed on record at pages 17 to 23 for all the 12 petitioners no date of admission nor date of payment of admission fee etc. Is mentioned. Petitioners themselves have stated that they have learnt that respondent No,5 is not affiliated with the Pakistan Nursing Council, yet they claimed that they continued to attend the classes. It is averred that the dispute if any is between the respondent No,5 and regulatory authority respondent Nos.2 to 4 and the petitioners should not be made to suffer.
4. Respondents No, 2, Pakistan Nursing Council, National Institute of Health Sciences, Islamabad, in the comments stated that earlier respondent No, 5 Burraq School of Nursing had filed a petition seeking somewhat similar relief. In said petition a statement of the then Administrator of respondent No, 5 was recorded that no admission would be made for the Session 2010-2011. The present Counsel Mr. Ishrat Ghazali, representing the petitioners had appeared for the respondent No,5 as petitioner in earlier Petition No,2518 of 2010. It is stated that respondent No, 5 herein, in breach of the orders passed by a Bench of this Court in C.P. No,D-2518 of 2010 admitted petitioner students therefore; official respondents, particularly the respondent No,2 Counsel is not at all responsible. It is further stated in the comments that thrice inspection of the Burraq Nursing School was carried out by the Authority and each time serious deficiencies were found, therefore, recognition was declined.
5. Mr Ghazali, learned Council for the petitioner contended that precious time and whole academic year of the of the petitioners would be wasted and this court is beseeched to give indulgence to the petitioners as was given to students and earlier batch of the students was permitted to sit in exams in C.P. 2518 of 2010.
6. Both the learned D.A.-G. And A.A.-G. Opposed the Petition. Learned A.A.-G. Has drawn our attention to section 12 of the Pakistan Nursing Council Act, 1973, which mandates that any institution which conducts any courses of training in general nursing, midwifery, health visiting, public health nursing, auxiliary nursing or nursing aid be registered or recognized institution. In terms of section 15 of the Act, it is provided that without possessing a recognized qualification no person will be registered as nurse, midwife, health visiting, public health nursing and nursing auxiliary. It is stated that even if petitioners are allowed appearing in any examination, they will not be entitled to receive recognized diploma or qualification having quailed from unregistered institution. It is stated that a person getting education from unrecognized or unregistered institution even cannot be employed by any hospital or health service provider in terms of section 23 of the Act. If any person is using such qualification other than from recognized institution is punishable under section 24 of the Act. Mr. Ashraf Mughal Learned D.A.-G. Adopts arguments of Mr. Saifullah A.A.-G., Sindh.
7. Mr. Ishrat Ghazali, learned Counsel for the petitioners was confronted that he had represented- respondent No,5 in C.P. No,D-2158 of 2010 and it is against the professional ethics and conduct to represent a conflicting interest, he merely stated that since he has informed the petitioners Attorney of his earlier appearing for the respondent No,5 herein and yet petitioners had no reservation as to his appearance in instant matter and get the relief as prayed for. It may be observed that such conduct of Mr. Ghazali, prima facie is clearly in negation to Rules contained in Part B of Chapter XII of Pakistan Legal Practitioners and Bar Councils Rules, 1976, however, we leave it to the Sindh Bar Council to discipline and put their own house in order and unless Bar Councils and Bar Associations play their active role in enforcing canons of professional conduct and etiquette and disciplining Advocates in accordance with Sindh Bar Council Act, 1973 and or Rules framed there under, independence and institutionalization of Judiciary would remain a far cry.
8. As noted above C.P. No,D-2518 of 2010 was filed by the respondent No,5, herein Messrs "Burraq School of Nursing", through its late Administrator. In said petition the Court has shown indulgence for the 10 students that appeared before the Court and at the same time on 17-9-2010 statement of the petitioners (i,e, respondent No,5 herein) Advocate was recorded that "no student has been admitted in petitioner's school for the Sessions. 2010-2011". In the circumstances the Court directed that "the petitioner shall not admit any student for the next session in his nursing School till disposal of the petition."
9. C.P. 2518 of 2010 was ordered to be attached along with instant Petition on 18-11-2011. From the record it appears that C.P. No,D-2518 of 2010 was disposed of on 16-8-2011 with observations that "the respondents therein shall evaluate and assess the affiliation in registration criteria and process the application in accordance with law." It is indeed a matter of serious concern that learned Counsel for the respondent No,5 ought to have informed the petitioners of the orders of the Court in which duty regretfully he failed and brought the petitioners in person in Court to earn and gain sympathy to obtain the order.
10. On examining the scheme of Pakistan Nursing Act, 1973. "Recognized Qualifications" as defined within contemplation of section 2(f) of the Act, 1973 "mean a qualification granted by a Board which is declared to be recognized qualification for the purpose of this Act" (underlined to add emphasis). The detail of qualification for General Nursing and Post Graduate Nursing is mentioned in the Schedule. It is so provided under the Act, 1973 that unless the "institution is recognized" it cannot extend any certificate of diploma or course as provided in the Act of 1973. The effect of registration is also given in section 15 of the Act. 1973, wherein it is provided that no person after commencement of this Act that is after 9th February, 1973 (on which date Act of 1973, was promulgated), is entitled to be enrolled in the register as nursing, midwifery, health visiting, public health nursing, auxiliary nursing or nursing aide be entitled to have the qualification, which is not recognized by higher qualification and entered as a supplementary qualification in the register.
Even no nursing, midwifery, health visiting, public health nursing, auxiliary nursing or nursing aide could be registered in the Register required to be maintained under section 19 of the Act without having received "recognized qualification" and likewise a prohibition is contemplated in section 23 of the Act. 1973, which puts fetters on any hospital, asylum, infirmary, dispensary etc. To employee any such person, unless, such person., is registered in the register or is a trainee at a institution recognized, for the purpose, by the Pakistan Nursing Council. Therefore, even if petitioners are given any indulgence and/or concession to appear and attend any further classes or to be eligible for appearing in qualifying diploma or any other course it would yield no beneficial result as without obtaining education or qualification from a "Recognized Institution", any such indulgence or exercise would be at the cost of offending the spirit of Act of 1973 and be in futility as the law does not acknowledge the qualification from any unrecognized Nursing Institution. Petitioner pursuing their education in such institution, which has not yet received any recognition, or which has been declined registration thrice in past for serious deficiencies would be further wasting their valuable time, energy and resources, therefore, we find no merit in the petition, it is dismissed leaving' the petitioners to claim refund of the fees and other charges in additions to damages from respondent No,5 and or from Messrs Burraq School of Nursing who specifically were prohibited from admitting any such student.
11. Looking this aspect of the matter, we would also issue notice to the respondents No,5 herein and petitioner in C.P.No, D-2518 of 2010 to show cause as to why contempt proceeding for violating the orders dated 17-9-2010 may not be initiated and further that the Messrs Burraq School of Nursing may not be directed to refund the entire amount recovered from the petitioners in C.P. No,D-3547 of 2011. This is of course without prejudice to the obligation and the duty of Pakistan Nursing Council and Director Nursing, Government of Sindh, to take action as may be permissible under the law against the Messrs Burraq School of Nursing, its administrator and or any person acting in violation of the Act, 1973 under intimation to this court. Copy of the judgment may be sent to D.A.-G., A.A.-G., (Sindh) and Sindh Bar Council for appropriate action on their part.