Allahabad High Court
Babban Singh Memorial Education Sewa ... vs State Of U.P. Thru. Addl. Chief Secy. ... on 26 September, 2025
Author: Pankaj Bhatia
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW
WRIT C No. 9010 of 2024
Babban Singh Memorial Education Sewa Trust, Deoria Thru. Authorized Signatory Sri Girijesh Singh
... Petitioners
Versus
State Of U.P. Thru. Addl. Chief Secy. Deptt. Of Medical Health And Family Welfare, Lko. And Others
...Respondents
Counsel for Petitioner(s)
:
Paavan Awasthi, Bhanu Bajpai
Counsel for Respondent(s)
:
C.S.C., Amita Srivastava, Gyanendra Kumar Srivastava, Rajiv Srivastava
CONNECTED WITH
Writ C Nos.
6155 of 2023
6262 of 2023
580 of 2024
6220 of 2023
6472 of 2023
645 of 2024
6230 of 2023
6496 of 2023
646 of 2024
6233 of 2023
6973 of 2023
8625 of 2024
6238 of 2023
6980 of 2023
Reserved: 24.09.2025
Pronounced: 26.09.2025
Court No. 6
HON'BLE PANKAJ BHATIA, J.
J U D G M E N T
1. All the present petitions raise a common issue with regard to right of consideration of approval of the institutions in intending to set up new courses for training and providing physical and instructional facilities under the Indian Nursing Council Act, hence, they are being decided together by this common judgment.
2. For the sake of brevity, the facts from Writ C No.9010 of 2024 are being considered.
3. The facts, in brief, are that the petitioner being desirous of establishing institute for training of nurses, midwives and health visitors applied for grant of approval before the Indian Nursing Council which is empowered to grant approval in terms of the mandate of Section 16 of the Indian Nursing Council Act, 1947 (hereinafter referred to as the 1947 Act). It is stated that the petitioner established the necessary facilities for imparting education in the field of nursing and running the ANM courses after spending substantial amounts of money. It is stated that in the year 2021, U.P. State Medical Faculty issued guidelines for opening of new nursing institutions for the academic session 2021 22 and applications were invited from the desirous institutions for opening the ANM Courses. In pursuance to the same, the petitioner had applied and had deposited the requisite fees. It is stated that the time for submitting the applications were extended on subsequent dates, however, despite the petitioner applying, the inspections etc., were not done and ultimately on 27.10.2021 on an inspection being carried out, certain deficiencies were pointed out with regard to the hostel facilities at the petitioners institution to which a reply was given that certain facilities had been completed and the remaining work was going on. It was also stated that in terms of the communication dated 13.02.2022 by the Indian Nursing Council, the norms for hostel have been relaxed since 2015 and having a hostel was not mandatory.
4. It is stated that despite the said clarification, no action was taken for granting approval to the petitioner by respondent no.3 i.e. U.P. State Medical Faculty. Subsequently, on 30.06.2023, information was given with regard to all the institutions who had applied for grant of recognition for running of the ANM courses that the governing body of respondent no.3 had taken a decision on 19.05.2023 to suspend the inspection and the other proceedings in respect of the applications for grant of recognition for new ANM courses till further orders. Meaning thereby, that a moratorium was imposed on the opening of the new ANM courses in the State of U.P. for an indefinite period. The said communication dated 30.06.2023 was based upon a study conducted by the U.P. Technical Support Unit (for short UPTSU) to the effect that the number of students obtaining qualification for the ANM courses are much higher in comparison to the number of jobs available in the government/private sector which is resulting in increasing of unemployed ANM candidates, and a recommendation was made that no new ANM Colleges be opened in the State and the request for seat enhancement in the existing institutions running the ANM courses may also be not granted. Thus, on these recommendations, the moratorium was imposed.
5. It is also stated that the UPTSU was formed in the year 2013 pursuant to a memorandum of cooperation executed between the Government of U.P. and the Bill and Melinda Gates Foundation.
6. It is also stated that challenging the order dated 30.06.2023, a writ petition being Writ C No.6417 of 2023 was filed in which certain directions were issued on 23.08.2024 and in pursuance thereof, impugned order dated 30.09.2024 has been passed deciding to continue with the moratorium imposed by it vide order dated 30.06.2023 on the opening of the new ANM colleges.
7. It is also stated that after the petition was filed, a fresh order was passed by the respondents on 04.09.2025 in a meeting held by circulation extending the moratorium imposed for a further period of two years. The said order has also been challenged by filing an amendment application.
8. Perusal of the reasoning contained in the order dated 04.09.2025 indicates that a moratorium was imposed earlier on 30.06.2023 and it was recorded in the order dated 04.09.2025 that for establishing an ANM Training Centres, there was no need for opening hospital and these organizations were applying for opening the institutions in an excessive manner for which no adequate positions were available and for a further period of 15 years, no ANM courses be opened or the seats be increased.
9. Challenging the said action, it is argued on behalf of the petitioner that the right to establish an educational institution is a fundamental right guaranteed under Art. 19(1)(g) of the Constitution of India as held by the Supreme Court in the case of T.M.A. Pai Foundation & Ors. v. State of Karnataka & Ors.1; Modern School v. Union of India and Ors.2; Pharmacy Council of India v. Rajeev College of Pharmacy and Ors.3.
10. It is next argued that the rights guaranteed under Art. 19(1)(g) of the Constitution of India can be restricted only by framing a law to be enacted by the competent legislature and not by executive instructions as held by the Supreme Court in the case of Rajeev College of Pharmacy (supra).
11. It is next argued that the law as prescribed under Art. 19(6) of the Constitution of India cannot be substituted by issuing executive orders and can be shown only by a legislation enacted by the competent legislature as held in the case of Rajeev College of Pharmacy (supra) and State of Bihar & Ors. v. Project Uchcha Vidya Sikshak Sangh & Ors.4.
12. It is argued that the restriction imposed by respondent no.3 vide orders dated 30.06.2023 and 04.09.2025 are wholly unreasonable, arbitrary and discriminatory as the same are founded solely on the recommendation made by the technical unit of the U.P. State Medical Faculty.
13. It is further argued that the decision even if held to be available to respondent no.3 can only be done by the statutory body which governs the establishing of the institution empowered under the 1947 Act and not by respondent no.3 as has been done. Once again the reliance is placed upon the judgment in the case of Rajeev College of Pharmacy (supra).
14. It is lastly argued that even if for the sake of arguments it is accepted that respondent no.3 can impose a moratorium, the same cannot be made applicable retrospectively and cannot be applied to the institutions whose applications are invited and are pending on the ground of legitimate expectation and promissory estoppel. Reliance is placed upon a judgment of the Supreme Court in the case of Bannari Amman Sugars Ltd. v. Commercial Tax Officer and Ors.5 and State of Bihar & Ors. v. Kalyanpur Cement Ltd.6.
15. On all these grounds, it is urged that the orders passed by respondent no.3 imposing indefinite moratorium is wholly arbitrary, illegal and violates the rights enshrined under Art. 19(1)(g) of the Constitution of India.
16. Lastly, it is argued that the same issue with regard to establishment of institutions on pharmacy which are governed by the Pharmacy Act and are regulated by the Pharmacy Council of India in which a similar decision was taken by the State came up for consideration before this Court in the case of C/M Karmyog Sewa Samiti v. State of U.P. & Ors7 in which a decision was rendered on 19.08.2025 upholding the contention of the petitioners therein that the decision of the government in declaring academic sessions as zero period is without jurisdiction and also violative of the rights enshrined under Art. 19(1)(g) of the Constitution of India and also without jurisdiction as the said power vests only with the Pharmacy Council of India established under the Pharmacy Act.
17. Learned counsel for respondent no.3 i.e. U.P. State Medical Faculty, on the other hand, argues based upon the written submission filed that on account of mushrooming of training centres, a proposal was issued giving option of upgrading the ANM curriculum to GNM or B.Sc (Nursing) based upon eligibility or withdrawing the proposal for ANM course and the same was conveyed to various applicants to take a decision.
18. It is further argued that the decision taken on 30.06.2023 and reiterated on 04.09.2025 was taken in view of the lack of employment avenues in the ANM in the government or private sector. It is further argued that these training institutes were given option to upgrade to GNM or B.Sc (Nursing) subject to fulfillment of eligibility criteria.
19. It is argued that the decision by no implication violates the rights to manage/establish the institution and in fact, the option given to upgrade was to ensure better employment prospectus than which are available for the students undergoing ANM courses. It is stated that the said decision was taken after due deliberation by the expert body after taking note of the employability prospectus of the ANM Trainees. Alongwith the written arguments, a list of institutions which have applied for upgradation has also been enclosed.
20. It is also stated that the order dated 30.06.2023 has been passed after due approval of the Principal Secretary of the Department of Medical Education and considering the large scale unemployment of the ANM Trainees.
21. To justify the said decision, reliance is placed upon judgment of the Supreme Court in the case of Vidharbha Sikshan Vyawasthapak Mahasangh v. State of Maharashtra and Ors.8 with emphasis on Para 6 which reads as under:
6. In view of the averments made in the affidavit of the respondents, it is difficult to accept the contention of the appellant that the impugned order or the policy decision of the Government is arbitrary and unreasonable. There is also no question of interference with the right to education of any citizen, as contended on behalf of the appellant. On the contrary, the Government, in our opinion, has taken the right decision so as to save the young men from being exploited. There is no substance in the contention of the appellant that the refusal to grant permission to hold D.Ed. classes for the year 1985-86 will result in unemployment. As pointed out in the affidavit of the respondents, if the permission is granted, there will be a large scale unemployment inasmuch as 3000 students will be admitted in the first year classes as against the requirement of 616 students.
22. Reliance is also placed upon a judgment of the Supreme Court in the case of State of Uttarakhand v. Nalanda College of Education and Ors.9 with emphasis on Paras 9, 10, 11, 12 & 13:
9. We have heard Shri Krishnam Mishra, learned counsel appearing on behalf of the appellant the State of Uttarakhand and Ms Manisha T. Karia, learned counsel appearing on behalf of NCTE. We have gone through the impugned judgment and order [State of Uttarakhand v. Nalanda College of Education, 2018 SCC OnLine Utt 1295] passed by the High Court, by which the High Court has quashed and set aside the policy decision taken by the State of Uttarakhand, opining/deciding not to grant recognition to the new BEd colleges and consequently recommending NCTE to take an appropriate decision on the application submitted by Respondent 1 to increase the seats of BEd course. It appears that the State Government vide order/communication dated 16-7-2013 sent its opinion and informed NCTE that as about 13,000 students are passing BEd course every year against the need of 2500 teachers and therefore most the students passing BEd course would be unemployed, it is recommended not to grant any further recognition to the new BEd colleges. By the impugned judgment and order [State of Uttarakhand v. Nalanda College of Education, 2018 SCC OnLine Utt 1295] , the High Court has set aside the said communication/policy decision terming the same as arbitrary. Therefore, the short question posed for consideration of this Court is, whether the policy decision taken by the State Government can be said to be arbitrary which calls for interference of the High Court under Article 226 of the Constitution of India?
10. An identical question came to be considered by this Court in Vidharbha Sikshan Vyawasthapak Mahasangh [Vidharbha Sikshan Vyawasthapak Mahasangh v. State of Maharashtra, (1986) 4 SCC 361] . Before this Court, the challenge was the judgment of the Bombay High Court whereby the High Court dismissed the writ petition challenging the order of the Government of Maharashtra refusing to grant permission to the member institutions of the original writ petitioner to hold the first year classes in Diploma in Education. In the case before this Court, a policy decision was taken by the State Government not to grant further recommendation to start new DEd colleges, inter alia, on the ground that in Nagpur and Bhandara Districts, a large number of applicants applied for starting new DEd colleges from time to time. It was found that the number of the new DEd colleges started in Nagpur and Bhandara Districts is proportionately much larger, about five times more than the estimated increased need of the two districts and therefore it was not desirable and feasible to permit the new DEd colleges. It was the case of the State that to permit admission of 3000 students every year will result in a serious consequence of a large scale unemployment.
11. The High Court dismissed the writ petition which has been confirmed by this Court in Vidharbha case [Vidharbha Sikshan Vyawasthapak Mahasangh v. State of Maharashtra, (1986) 4 SCC 361] by observing that the Government has taken the right decision so as to save the young men from being exploited. This Court also negatived the contention on behalf of the management that the refusal to grant permission to hold DEd classes will result in unemployment. This Court approved the stand on behalf of the State that if the permission is granted, there will be a large scale unemployment inasmuch as 3000 students will be admitted in the first year classes as against the requirement of 616 students. Therefore, this Court in Vidharbha case [Vidharbha Sikshan Vyawasthapak Mahasangh v. State of Maharashtra, (1986) 4 SCC 361] has approved the policy decision taken by the State not to grant further recognition to the new DEd colleges as there was no requirement of the new DEd colleges looking to the requirement of teachers.
12. Applying the law laid down by this Court in the aforesaid decision, the High Court has committed a serious error in holding that the decision not to recommend for the new BEd colleges can be said to be arbitrary. At this stage, it is required to be noted that under the provisions of the NCTE Regulations, the State is well within its right to make suitable recommendations. As per Rule 7(5) of the NCTE Regulations, 2014, on receipt of the communication from the office of the Regional Committee to the State, the State Government is required to send its recommendations or comments to the Regional Committee. It further provides that in case the State Government is not in favour of the recommendation, it shall provide detailed reasons or grounds thereof with necessary statistics, which shall be taken into consideration by the Regional Committee concerned while disposing of the application. Therefore, when the State Government is required to provide detailed reasons against grant of recognition with necessary statistics, it includes the need and/or requirement.
13. Therefore, the State Government was well within its right to recommend and/or opine that the State Government is not in favour of granting further recognition to the new BEd colleges as against the need of annually 2500 teachers approximately 13,000 students would be passing out every year, therefore, for the remaining students, there will be unemployment. The aforesaid decision cannot be said to be arbitrary as observed and held by the High Court. The need of the new colleges looking to the requirement can be said to be a relevant consideration and a decision not to recommend further recognition to the new BEd colleges on the need basis cannot be said to be arbitrary. Under the circumstances, the impugned judgment and order passed by the High Court is unsustainable.
23. With regard to powers vested in respondent no.3 to pass the orders of the nature passed, reliance is placed upon Section 10, which is extracted in later part of the judgment.
24. Reliance is also placed upon order dated 24.07.2017 passed in Writ Petition No.25355-25357/2017 (The Karnataka State Association of the Management of Nursing and Allied Health Science Institutions & Ors. v. Union of India and Ors.) wherein Section 10 of the 1947 Act was interpreted by the Karnataka High Court to the following effect:
16. In the circumstances, I am of the clear view that the petitions (W P Nos.25355-57/2017) are entitled to succeed. In the result, these petitions (W P Nos.25355-57/2017) are allowed. It is declared that the Indian Nursing Council, Respondent No.2 herein, has no authority to grant recognition to the Institutions imparting Nursing courses. The respondent No.2 is further restrained from publishing on its website, materials indicating that the institutions imparting Nursing courses have to obtain recognition from Respondent No.2 and all such materials from which it could infer recognition is to be obtained from Indian Nursing Council stand withdrawn from its website forthwith. W P Nos.28383-28385/2017 which is also for the similar relief is accordingly disposed of. Rule issued and made absolute accordingly.
25. The order referred to above, it is argued, was upheld by the Supreme Court in Civil Appeal No.12759-12761/2017 (The Karnataka State Association of the Management of Nursing and Allied Health Science Institutions & Ors. v. Indian Nursing Council and Ors.) vide judgment dated 11.09.2017. The said order is quoted herein below:
1. Leave granted.
2. The learned Single Judge allowed the writ appeal in the following terms:
16. In the circumstances, I am of the clear view that the petitions (W.P.Nos.25355-57/2017) are entitled to succeed. In the result, these petitions ( W.P.Nos.25355-57/2017) are allowed. It is declared that the Indian Nursing Council, Respondent No.2 herein, has no authority to grant recognition to the Institutions imparting Nursing courses. The Respondent No.2 is further restrained from publishing on its website, materials indicating that the institutions imparting Nursing courses have to obtain recognition from Respondent No.2 and all such materials from which it could infer recognition is to be obtained from Indian Nursing Council stand withdrawn from its website forthwith. W.P. Nos.28383-28385/ 2017 which is also for the similar relief is accordingly disposed of. Rule issued and made absolute accordingly.
3. Against the aforesaid Single Judge's judgment a writ appeal was preferred to the Division Bench of the Karnataka High Court which admitted the appeal and stayed the second part of the learned Single Judge's order.
4. We are of the view that the two parts of the learned Single Judge's order are inextricably inter connected. Once it is declared that the Indian Nursing Council, Respondent No.2 has no authority to grant recognition to the Institutions imparting Nursing Course it must follow that the Respondent No.2 is,therefore, restrained from publishing on its website, the material that are indicated. We are, therefore, of the view that the interim order passed by the Division Bench must be set aside and the order of the learned Single Judge restored.
5. The appeals are allowed in the aforesaid terms.
26. It is further argued that Indian Nursing Council has no power to grant recognition and it is respondent no.3 which is empowered to grant recognition.
27. It is argued that even in the guidelines issued by the Indian Medical Council, a no objection certificate is mandatory without which nursing institution cannot be established in the country. Reliance is placed upon the judgment in the case of Chintpurni Medical College and Hospital & Anr. v. State of Punjab & Ors.10, which had upheld the grant of Essentiality Certificate by the State Government.
28. It is also argued that the policy decision taken by the expert body could not be interfered with by the Courts. For that reliance is placed upon the judgment in the case of Dental Council of India v. Biyani Shikshan Samiti and Anr.11.
29. It is lastly argued that the judgment in the case of Rajeev College of Pharmacy (supra) is not applicable in the present case as the Pharmacists have avenues of job in pharmacy in all over the country whereas the ANM has avenue to get appointed in the government hospital in the State of U.P. Thus, it is prayed that the writ petitions are liable to be dismissed.
30. In the light of the arguments recorded above, it is essential to notice that the 1947 Act was enacted to constitute an Indian Nursing Council with a view to establish a uniform standard of training for nurses, midwives and health visitors. Section 4 of the said Act prescribes for incorporation of the Council known as Indian Nursing Council. Section 10 of the said Act conferred the power of recognition of qualifications and prescribes that the qualification included in Part I of the Schedule shall be the recognized qualifications and qualifications included in Part II of the Schedule shall be recognised as higher qualification. Section 10 of the 1947 Act is quoted herein below:
10. Recognition of qualifications.(1) For the purposes of this Act, the qualifications included in Part I of the Schedule shall be recognised qualifications, and the qualifications included in Part II of the Schedule shall be recognised higher qualifications.
(2) Any authority within the States which, being recognised by the State Government in consultation with the State Council, if any, for the purpose of granting any qualification, grants a qualification in general nursing, midwifery, auxiliary nursing midwifery, health visiting or public health nursing, not included in the Schedule may apply to the Council to have such qualification recognised, and the Council may declare that such qualification, or such qualification only when granted after a specified date, shall be a recognised qualification for the purposes of this Act.
(3) The Council may enter into negotiations with any authority in any territory of India to which this Act does not extend or foreign country which by the law of such territory or country is entrusted with the maintenance of a register of nurses, midwives or health visitors, for the settling of a scheme of reciprocity for the recognition of qualifications, and in pursuance of any such scheme the Council may declare that a qualification granted by any authority in any such territory or country, or such qualification only when granted after a specified date, shall be a recognised qualification for the purposes of this Act :
Provided that no declaration shall be made under this sub-section in respect of any qualification unless by the law and practice of the foreign country in which the qualification is granted persons domiciled or originating in India and holding qualifications recognised under this Act are permitted to enter and practise the nursing profession in that country :
Provided further that
(i) any reciprocal arrangements subsisting at the date of the commencement of this Act between a State Council and any authority outside India for the recognition of qualifications shall, unless the Council decides otherwise, continue in force, and
(ii) any qualification granted by an authority in a territory of India to which this Act did not extend at the date of its commencement, and recognised on the said date by the State Council of a State to which this Act then extended, shall continue to be a recognised qualification for the purpose of registration in that State.
(4) The provisions of sub-sections (2) and (3) and of Sections 14 and 15 shall apply mutatis mutandis to the declaration by the Council of a qualification granted in respect of post-certificate nursing training as a recognised higher qualification.
31. It is also essential to notice Section 11 of the 1947 Act which provides for the effect of recognition and prescribes that the recognised qualification under the Part I and Part II of the Schedule shall be sufficient qualification for enrollment in any State register and also bars that no person who does not hold the requisite qualification shall be entered into register of the State. Section 11 reads as under:
11. Effect of recognition.(1) Notwithstanding anything contained in any other law,
(a) any recognised qualification shall be a sufficient qualification for enrolment in any State register;
(b) no person shall, after the date of the commencement of this Act, be entitled to be enrolled in any State register as a nurse, midwife, auxiliary nurse-midwife, health visitor, or public health nurse unless he or she holds a recognised qualification :
Provided that any person already enrolled in any State register before the said date may continue to be so enrolled notwithstanding that he or she may not hold a recognised qualification:
Provided further that any person who was immediately before the said date entitled to be enrolled in any State register but was not so enrolled shall, on application made in this behalf before the expiry of two years from the said date be entitled to be enrolled in that register;
(c) any person holding a recognised higher qualification shall be entitled to have the qualification entered as a supplementary qualification in any State register in which he or she is enrolled, and after the said date no person shall be entitled to have entered as a supplementary qualification in any State register any qualification which is not a recognised higher qualification.
(2) Notwithstanding anything contained in clause (b) of sub-section (1)
(a) a citizen of India holding a qualification which entitles him or her to be registered with any Council of Nursing or Midwifery (by whatever name called) in any foreign country, may, with the approval of the Council, be enrolled in any State register; and where approval has been accorded by the Council in respect of such qualification in one case, the approval of the Council for enrolment in a State register in the case of any other citizen of India holding the same qualification shall not be necessary;
(b) a person not being a citizen of India who is employed as a nurse, midwife, auxiliary nurse-midwife, teacher or administrator in any hospital or institution situated in any State for purposes of teaching, research or charitable work may, with the approval of the President of the Council, be enrolled temporarily in the State register for such period as may be specified in this behalf in the order issued by the said President :
Provided that practice by such person shall be limited to the hospital or institution to which he or she is attached.
32. Section 12 of the 1947 Act empowers the authority under the Act which grants recognised qualification to furnish such information as the council from time to time required as to the courses of study and training and examinations to be undergone in order to obtain such qualifications as also with regard to the ages at which the courses can be pursued. Thus, in terms of the 1947 Act, it is the Indian Nursing Council which is empowered to take decision with regard to the courses of the study material which has to be undergone to obtain the degree. Section 12 reads as under:
12. Power to require information as to courses of study and training and examinations.Every authority in any State which grants a recognised qualification or a recognised higher qualification shall furnish such information as the Council may, from time to time, require as to the courses of study and training and examinations to be undergone in order to obtain such qualification, as to the ages at which such courses of study and examinations are required to be undergone and such qualifications conferred, and generally as to the requisites for obtaining such qualification.
33. Section 13 of the 1947 Act empowers the appointment of inspectors for conducting the inspections and Section 14 of the 1947 Act empowers the Council for withdrawing the recognition granted in respect of a person having obtained the recognition from any authority in the State. Section 13 and Section 14 are quoted herein below:
13. Inspections.(1) The Executive Committee may appoint such number of inspectors whether from among members of the Council or otherwise, as it deems necessary to inspect any institution recognised as a training institution, and to attend examinations held for the purpose of granting any recognised qualification or recognised higher qualification.
(2) Inspectors appointed under this section shall report to the Executive Committee on the suitability of the institution for the purposes of training and on the adequacy of the training therein, or as the case may be, on the sufficiency of the examinations.
(3) The Executive Committee shall forward a copy of such report to the authority or institution concerned, and shall also forward copies, with the remarks, if any, of the authority or institution concerned thereon, to the Central Government and to the State Government and State Council of the State in which the authority or institution is situated.
14. Withdrawal of recognition.(1) When, upon report by the Executive Committee, it appears to the Council
(a) that the courses of study and training and the examinations to be gone through in order to obtain a recognised qualification from any authority in any State, or the conditions for admission to such courses or the standards of proficiency required from the candidates at such examinations are not in conformity with the regulations made under this Act or fall short of the standards required thereby, or
(b) that an institution recognised by a State Council for the training of nurses, midwives, auxiliary nurse-midwives or health visitors does not satisfy the requirements of the Council, -
the Council may send to the Government of the State in which the authority or institution, as the case may be, is situated a statement to such effect, and the State Government shall forward it, alongwith such remarks as it may think fit to the authority or institution concerned and, in a case referred to in clause (b) to the State Council also, with an intimation of the period within which the authority or institution may submit its explanation to the State Government.
(2) On the receipt of the explanation or, where no explanation is submitted within the period fixed, then on the expiry of the period, the State Government shall make its recommendations to the Council.
(3) The Council, after such further inquiry, if any, as it may think fit to make, and in a case referred to in clause (b) of sub-section (1), after considering any remarks which the State Council may have addressed to it, may declare,
(a) in a case referred to in clause (a) of that sub-section, that the qualifications granted by the athority concerned shall be recognised qualifications only when granted before a specified date, or
(b) in a case referred to in the said clause (b), that with effect from a date specified in the declaration any person holding a recognised qualification whose period of training and study preparatory to the grant to him of the qualification was passed at the institution concerned shall be entitled to be registered only in the State in which the institution is situated.
(4) The Council may declare that any recognised qualification granted outside the State shall be a recognised qualification only if granted before a specified date.
34. It is essential to notice the mandate of Section 16 which empowers the Council to make regulations. Section 16 is quoted herein below:
16. Power to make regulations.(1) The Council may by notification in the Official Gazette, make regulations not inconsistent with this Act generally to carry out the provisions of this Act, and in particular and without prejudice to the generality of the foregoing power, such regulations may provide for
(a) the management of the property of the Council and the maintenance and audit of its accounts;
(b) the manner in which elections referred to in sub-section (2) of Section 5 and in clause (a) of sub-section (2) of Section 8 shall be conducted;
(c) the summoning and holding of the meetings of the Council, the times and places at which such meetings shall be held, the conduct of business thereat and the number of members necessary to constitute a quorum;
(d) prescribing the functions of the Executive Committee, the summoning and holding of meetings thereof, the times and places at which such meetings shall be held, and the number of members necessary to constitute a quorum;
(e) prescribing the powers and duties of the President and the Vice-President;
(f) prescribing the tenure of office and the powers and duties of the Secretary and other officers and servants of the Council;
(ff) prescribing the powers and duties of inspectors;
(g) prescribing the standard curricula for the training of nurses, midwives and health visitors, for training courses for teachers of nurses, midwives and health visitors, and for training in nursing administration;
(h) prescribing the conditions for admission to courses of training as aforesaid;
(i) prescribing the standards of examination and other requirements to be satisfied to secure for qualifications recognition under this Act;
(j) any other matter which is to be or may be prescribed under this Act.
(2) To enable the Council to be first constituted, the President may, with the previous sanction of the Central Government, make regulations for the conduct of the elections referred to in sub-section (2) of Section 5, and any regulations so made may be altered or rescinded by the Council in exercise of its powers under this section.
(3) Every regulation made under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the regulation or both Houses agree that the regulation should not be made, the regulation shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that regulation.
35. It is also essential to notice the definition of State Council as defined under Section 2(c) of the 1947 Act, which reads as under:
2. Interpretation.In this Act, unless there is anything repugnant in the subject or context, ...
(c) State Council means a Council (by whatever name called) constituted under the law of a State to regulate the registration of nurses, midwives or health visitors in the State;
36. On a plain reading of the provisions contained in the Sections referred to above, it is plainly clear that it is the Indian Nursing Council established at the Central and the State level which are empowered to regulate the study of the nursing courses for midwives, nurses and health visitors. In the 1947 Act, no power has been conferred upon the State except on the State Council established under law by the State to regulate the registration of nurses, midwives and health visitors.
37. It is essential to notice that on the lines of the Council established under the 1947 Act, Pharmacy Council has been established under the Pharmacy Act with powers which are similar to the Council granted under the 1947 Act as well as the Council established under the NCTE. The Councils established under the Act came up for consideration before the Supreme Court in the case of Pharmacy Council of India v. Dr. S.K. Toshniwal Educational Trusts Vidharbha Institute of Pharmacy and Ors.12 with regard to establishing an institution being guaranteed under Art.19(1)(g) of the Constitution of India and supremacy of the Councils established under the Pharmacy Act to the following effect:
12.4. In exercise of powers vested in the Pharmacy Act, PCI has framed a number of regulations for prescribing minimum standards of education as well as regulating the subject of pharmacy in India, including:
(a) The Education Regulations, 1991;
(b) The Pharm. D Regulations, 2008;
(c) The Minimum Qualification for Teachers in Pharmacy Institutions Regulations, 2014;
(d) The Bachelor of Pharmacy (B. Pharm) Course Regulations, 2014;
(e) The Master of Pharmacy (M. Pharm) Course Regulations, 2014;
(f) The Bachelor of Pharmacy (Practice) Regulations, 2014;
(g) The Pharmacy Practice Regulations, 2015.
12.5. Thus, considering the various provisions of the Pharmacy Act and the regulations made therein, it can be said that the Pharmacy Act is a complete code in itself in the subject of pharmacy. PCI has been constituted as a body empowered to regulate the education and profession of pharmacy in India. It cannot be disputed that the subject of pharmacy is a special and not a general subject. From the relevant provisions of the Pharmacy Act, more particularly, the provisions referred to hereinabove, the Pharmacy Act exclusively covers all areas inclusive of approval of courses, laying down course content, eligibility conditions for students as well as teachers, evaluation standards of examination, grant of registration, entry of higher qualification in the same discipline, taking action for infamous conduct, etc. It also contains a penal provision. Thus, the legislative intent in enacting the Pharmacy Act seems to be to ensure that there is seamless regulation of the profession. To carry out the objective and purpose for enacting the Pharmacy Act, the legislature has established under the statute the autonomous statutory authority i.e. Pharmacy Council of India. Thus it can be said that in the field of pharmacy, the Pharmacy Act is a special law.
20. In view of the above and for the reasons stated above, it is held that in the field of pharmacy education and more particularly so far as the recognition of degrees and diplomas of pharmacy education is concerned, the Pharmacy Act, 1948 shall prevail. The norms and regulations set by PCI and other specified authorities under the Pharmacy Act would have to be followed by the institutions concerned imparting education for degrees and diplomas in pharmacy, including the norms and regulations with respect to increase and/or decrease in intake capacity of the students and the decisions of PCI shall only be followed by the institutions imparting degrees and diplomas in pharmacy. The questions are answered accordingly.
38. Similar observations were made by the Supreme Court in respect of statutes governing the technical education in the case of Parshvanath Charitable Trust and Ors. v. All India Council for Technical Education and Ors.13 to the following effect:
24. The consistent view of this Court has been that where both Parliament and the State Legislature have the power to legislate, the Central Act shall take precedence in the matters which are covered by such legislation and the State enactments shall pave way for such legislations to the extent they are in conflict or repugnant. As per the established canons of law, primacy of the Central Act is indisputable which necessarily implies primacy of Aicte in the field of technical education. Statutes like the present one as well as the National Council for Teacher Education Act, 1993, the Indian Medical Council Act, 1956, etc. fall within the ambit of this canon of law. Aicte is the authority constituted under the Central Act with the responsibility of maintaining operational standards and judging the infrastructure and facilities available for imparting professional education. It shall take precedence over the opinion of the State as well as that of the University. The department concerned of the State and the affiliating university have a role to play, but it is limited in its application. They cannot lay down any guidelines or policies in conflict with the Central statute or the standards laid down by the Central body. The State can frame its policies, but such policy again has to be in conformity with the direction issued by the Central body. Though there is no such apparent conflict in the present case, yet it needs to be clarified that grant of approval by the State and affiliation by the University for increased intake of seats or commencement of new college should not be repugnant to the conditions of approval/recommendation granted by Aicte. These authorities have to work in tandem as all of them have the common object to ensure maintenance of proper standards of education, examination and proper infrastructure for betterment of technical educational system.
25. It is also a settled principle that the regulations framed by the Central authorities such as Aicte have the force of law and are binding on all concerned. Once approval is granted or declined by such expert body, the courts would normally not substitute their view in this regard. Such expert views would normally be accepted by the court unless the powers vested in such expert body are exercised arbitrarily, capriciously or in a manner impermissible under the Regulations and the Aicte Act. In All India Council for Technical Education v. Surinder Kumar Dhawan [(2009) 11 SCC 726] , this Court, while stating the principles that the courts may not substitute their opinion in place of the opinion of the Council, held as under: (SCC pp. 732-33 & 736, paras 17-18 & 32)
17. The role of statutory expert bodies on education and the role of courts are well defined by a simple rule. If it is a question of educational policy or an issue involving academic matter, the courts keep their hands off. If any provision of law or principle of law has to be interpreted, applied or enforced, with reference to or connected with education, the courts will step in. In J.P. Kulshrestha v. Allahabad University [(1980) 3 SCC 418 : 1980 SCC (L&S) 436 : (1980) 2 LLJ 175] this Court observed: (SCC pp. 424-26, paras 11-17)
11. Judges must not rush in where even educationists fear to tread * * *
17. While there is no absolute ban, it is a rule of prudence that courts should hesitate to dislodge decisions of academic bodies.
(emphasis supplied)
18. In Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth [(1984) 4 SCC 27 : (1985) 1 SCR 29] this Court reiterated: (SCC pp. 56-57, para 29)
29. the Court should be extremely reluctant to substitute its own views as to what is wise, prudent and proper in relation to academic matters in preference to those formulated by professional men possessing technical expertise and rich experience of actual day-to-day working of educational institutions and the departments controlling them.
* * *
32. This is a classic case where an educational course has been created and continued merely by the fiat of the court, without any prior statutory or academic evaluation or assessment or acceptance. Granting approval for a new course or programme requires examination of various academic/technical facets which can only be done by an expert body like Aicte. This function cannot obviously be taken over or discharged by courts. In this case, for example, by a mandamus of the court, a bridge course was permitted for four-year advance diploma-holders who had passed the entry-level examination of 10+2 with PCM subjects. Thereafter, by another mandamus in another case, what was a one-time measure was extended for several years and was also extended to post diploma-holders. Again by another mandamus, it was extended to those who had passed only 10+1 examination instead of the required minimum of 10+2 examination. Each direction was obviously intended to give relief to students who wanted to better their career prospects, purely as an ad hoc measure. But together they lead to an unintended dilution of educational standards, adversely affecting the standards and quality of engineering degree courses. Courts should guard against such forays in the field of education.
(emphasis in original)
39. This Court also had taken a similar view in respect of the right to establish pharmacy institutions in the case of HMS College of Pharmacy and Anr. v. State of U.P. & Ors.14.
40. In the light of the provisions which are similar, the issue as raised came up for consideration before the Supreme Court in the case of Rajeev College of Pharmacy and Ors. (supra), wherein the action of the PCI itself in imposing a moratorium in opening of pharmacy colleges through executive instructions was considered in the light of the rights flowing from Art. 19(1)(g) of the Constitution of India and the Supreme Court after considering the submissions including the submission that there was a mushrooming of the pharmacy colleges which required imposition of moratorium, as was argued before the Supreme Court, observed that the moratorium was imposed in exercise of executive powers and not by framing any regulation as are prescribed under the Act and the following was observed in Paras 33, 34, 35, 36, 38, 40, 41 & 42:
33. The moot question, therefore, that requires consideration, is as to whether the moratorium, as imposed by the Central Council of the appellant PCI, could have been imposed by the said Resolution, which is in the nature of an executive instruction of the Central Council.
34. It will be relevant to refer to the following observations of the Constitution Bench, consisting of 11 Judges, of this Court in T.M.A. Pai Foundation [T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481 : 2 SCEC 1] : (SCC p. 533, para 18)
18. With regard to the establishment of educational institutions, three articles of the Constitution come into play. Article 19(1)(g) gives the right to all the citizens to practise any profession or to carry on any occupation, trade or business; this right is subject to restrictions that may be placed under Article 19(6). Article 26 gives the right to every religious denomination to establish and maintain an institution for religious purposes, which would include an educational institution. Article 19(1)(g) and Article 26, therefore, confer rights on all citizens and religious denominations to establish and maintain educational institutions.
35. It could thus clearly be seen that the Constitution Bench of this Court in the aforesaid case, in unequivocal terms, holds that in view of Article 19(1)(g) and Article 26 of the Constitution of India, all citizens and religious denominations are conferred with a right to establish and maintain educational institutions.
36. Another Constitution Bench, consisting of five Judges, of this Court in Islamic Academy of Education [Islamic Academy of Education v. State of Karnataka, (2003) 6 SCC 697 : 2 SCEC 339] has held thus : (SCC pp. 764-65, paras 120-21)
120. So far as institutions imparting professional education are concerned, having regard to the public interest, they are bound to maintain excellence in the standard of education. To that extent, there cannot be any compromise and the State would be entitled to impose restrictions and make regulations both in terms of Article 19(1)(g) and Article 30 of the Constitution of India. The width of the rights and limitations thereof of unaided institutions whether run by a majority or a minority must conform to the maintenance of excellence. With a view to achieve the said goal, indisputably, the regulations can be made by the State.
121. The right to administer does not amount to the right to maladminister and the right is not free from regulation. The regulatory measures are necessary for ensuring orderly, efficient and sound administration. The regulatory measures can be laid down by the State in the administration of minority institutions.
37. ...
38. Thereafter the Constitution Bench, consisting of seven Judges, of this Court in P.A. Inamdar [P.A. Inamdar v. State of Maharashtra, (2005) 6 SCC 537 : 2 SCEC 745] , observed thus : (SCC p. 589, para 92)
92. As an occupation, right to impart education is a fundamental right under Article 19(1)(g) and, therefore, subject to control by clause (6) of Article 19. This right is available to all citizens without drawing a distinction between minority and non-minority. Such a right is, generally speaking, subject to the laws imposing reasonable restrictions in the interest of the general public. In particular, laws may be enacted on the following subjects : (i) the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business; (ii) the carrying on by the State, or by a corporation owned or controlled by the State of any trade, business, industry or service whether to the exclusion, complete or partial of citizens or otherwise. Care is taken of minorities, religious or linguistic, by protecting their right to establish and administer educational institutions of their choice under Article 30. To some extent, what may be permissible by way of restriction under Article 19(6) may fall foul of Article 30. This is the additional protection which Article 30(1) grants to the minorities.
39. It could thus be seen that the Constitution Bench of this Court in P.A. Inamdar [P.A. Inamdar v. State of Maharashtra, (2005) 6 SCC 537 : 2 SCEC 745] has again reiterated that the right to impart education is a fundamental right under Article 19(1)(g) and, therefore, subject to control by clause (6) of Article 19. It has been held that such a right is subject to the laws imposing reasonable restrictions in the interest of the general public. It has further been held that the laws may be enacted for prescribing the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business. The laws could also be enacted for the purposes of the carrying on by the State, or by a corporation owned or controlled by the State of any trade, business, industry or service whether to the exclusion, complete or partial of citizens or otherwise.
40. In Modern Dental College & Research Centre [Modern Dental College & Research Centre v. State of M.P., (2016) 7 SCC 353 : 7 SCEC 1] , the Constitution Bench, consisting of five Judges, of this Court held that though private unaided minority and non-minority institutions have a right to establish educational institutions, in order to balance the public interest, the State is also empowered to frame Regulations in the interest of general public. This Court held that, while considering the scope of reasonable restrictions which are sought to be brought in, in the interest of the general public, the exercise that is required to be undertaken is the balancing of the fundamental rights to carry on a trade or occupation on one hand and the restrictions so imposed on the other hand. This Court held that it was necessary to find out as to whether the restrictions so imposed were proportional or not.
41. It is thus clear that though there is a fundamental right to establish educational institutions, the same can be subject to reasonable restrictions, which are found necessary in the general public interest. However, the question that requires to be answered is as to whether the same can be done by executive instructions or not.
42. The question is directly answered by this Court in State of Bihar v. Project Uchcha Vidya, Sikshak Sangh [State of Bihar v. Project Uchcha Vidya, Sikshak Sangh, (2006) 2 SCC 545 : 2006 SCC (L&S) 355 : 5 SCEC 589] in para 69, which reads thus : (SCC p. 574)
69. The right to manage an institution is also a right to property. In view of a decision of an eleven-Judge Bench of this Court in T.M.A. Pai Foundation v. State of Karnataka [T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481 : 2 SCEC 1] establishment and management of an educational institution has been held to be a part of fundamental right being a right of occupation as envisaged under Article 19(1)(g) of the Constitution. A citizen cannot be deprived of the said right except in accordance with law. The requirement of law for the purpose of clause (6) of Article 19 of the Constitution can by no stretch of imagination be achieved by issuing a circular or a policy decision in terms of Article 162 of the Constitution or otherwise. Such a law, it is trite, must be one enacted by the legislature.
(emphasis supplied).
41. In the present case, based upon the law as explained in the case of Rajeev College of Pharmacy (supra) which flows from the similar provisions contained in the Pharmacy Act, it is clear that right to establish educational institutions is guaranteed under Art. 19(1)(g) of the Constitution of India; the same can be restricted only by taking recourse to Art. 19(6) of the Constitution of India by framing regulations. In the present case, no regulations have been framed and the imposition of moratorium is based upon executive instructions which cannot substitute the requirement of Art. 19(6) of the Constitution of India.
42. On a plain reading of the provisions of the Act, it is clear that it is only the Indian Nursing Council which is empowered to take decisions with regard to regulating and running of courses under the Act in question and the State Government has no authority to impose moratorium and certainly not indefinitely and certainly not through executive instructions.
43. It is also essential to notice the foundation based upon which the executive orders have been passed. The same also cannot be termed as reasonable inasmuch as no data appears to have been placed for taking a drastic decision of imposition indefinite moratorium. The only recommendation of the UPTSU without there being any data whatsoever either being considered or at least recorded in either two orders, cannot be held to be justifiable exercise of powers. The judgment of the Supreme Court in the case of Nalanda College of Education (supra) is not applicable in view of there being a prescription under Rule 7(5) of the NCTE Regulations, 2014 enabling the State Government to express its opinion with regard to the decisions; no such power is conferred under the 1947 Act and no such data is available on record or before the authority i.e. respondent no.3 which has taken a decision of the nature impugned in the present writ petition.
44. It has been brought to the notice of this Court that in pursuance to the direction given by the High Court of Karnataka, the Indian Nursing Council has issued a notification stating that the recognition is to be granted by the State Authorities and not by the Indian Nursing Council and thereafter, all the applications for recognition are considered by the State Authorities in the State of U.P. by respondent no.3 i.e. U.P. State Medical Faculty.
45. Thus, for all the reasons recorded above, order dated 30.09.2024 and the decision taken on 04.09.2025 are quashed.
46. All the writ petitions are allowed with direction that respondent no.3 shall take a decision with regard to applications filed by the petitioner in the writ petitions for grant of recognition for running the courses subject to the guidelines.
47. As it is informed that the date for applying has been extended by the Indian Nursing Council vide Notification No.10 of 2025, the application of the petitioners shall be considered within the timeline as extended.
September 26th, 2025 [Pankaj Bhatia, J.]
Nishant