Rajasthan High Court - Jodhpur
Abhay Singh vs The State Of Rajasthan on 16 August, 2023
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 5596/2022
1. Abhay Singh S/o Pab Singh, Aged About 22 Years,
Resident Of Hadecha, Tehsil Chitalwana, Dist. Jalore,
Rajasthan.
2. Aastha Airee D/o Gagan Bahadur Airee, Aged About 22
Years, Resident Of 999, Ram Nagar, Zawar Mines, Jawar,
Udaipur, Rajasthan.
3. Ajay Ray S/o Atul Ray, Aged About 25 Years, Resident Of
Totla Marg, Tehsil Tarana, Ujjain, Madhya Pradesh.
4. Anil Kumar S/o Kundan Mal, Aged About 22 Years,
Resident Of Patiya Bhim, Rajsamand, Rajasthan.
5. Aqsa Sajjad D/o Sajjad Hussain, Aged About 24 Years,
Resident Of Village Kurya, Dist. Kishtwar, Jammu And
Kashmir.
6. Arpana Devi D/o Suraj Prakesh, Aged About 25 Years,
Resident Of Village Chalog, Kathua, Jammu And Kashmir.
7. Arzoo Rayaz D/o Mohd. Rayaz, Aged About 22 Years,
Resident Of Nagrota, Rajouri, Jammu And Kashmir.
8. Buliwal Navin S/o Om Prakash, Aged About 23 Years,
Resident Of Ward No. 4, Khatik Mohalla, Village
Mehendragarh, Dist. Bhilwara.
9. Chainaram Jat S/o Shivram Jat, Aged About 24 Years,
Resident Of Bhikshu Vihar Road, Village Kelwa, Tehsil
Rajsamand.
10. Christian Era Dinesh D/o Dinesh, Aged About 23 Years,
Resident Of A-40, New Parimal Society, B/h Kirthidham
Mandir, Chandkheda, Ahamdabad, Gujarat.
11. Dalaram Choudhary S/o Hari Ram Choudhary, Aged About
24 Years, Resident Of Village Panchala, Tehsil Sanchore,
Dist. Jalore.
12. Damni Devi D/o Sat Paul Ji, Aged About 22 Years,
Resident Of B No. 99, House No. 58, Village Lambehri,
Dist. Rajouri, Jammu And Kashmir.
13. Dheeraj Kumar Katariya S/o Narendra Kumar Katariya,
Aged About 21 Years, Resident Of Meghwalo Ka Bas, 331,
Nanana, Pali, Rajasthan.
14. Diwakar Sharma S/o Shyam Sunder Sharma, Aged About
23 Years, Resident Of Multan Nagar, Street No. 7, Ward
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No.4, Nokha, Bikaner, Rajasthan.
15. Gulam Dastgir S/o Ibrahim Khan, Aged About 25 Years,
Resident Of Village Mandar, Dist. Sirohi, Rajasthan.
16. Irshad Khan S/o Bhawaru Khan, Aged About 22 Years,
Resident Of Village Badipal, Post Chang, Dist. Pali,
Rajasthan.
17. Jatin Sahu S/o Ghanshyam Sahu, Aged About 21 Years,
Resident Of Mohalla Sagar Bajar, Kherwada, Udaipur
(Raj.)
18. Jitendra Meena S/o Meetha Lal, Aged About 21 Years,
Resident Of Itendra Mertiyan, Tehsil Rani, Dist. Pali,
Rajasthan.
19. Kajal Vishvas D/o Sujeet Kumar Vishwas, Aged About 22
Years, Resident Of Palakheri, Post Pind, Tehsil Barisadri,
Dist. Chittorgarh, Rajasthan.
20. Kalpesh Kumar Bhagora S/o Dinesh Bhagora, Aged About
22 Years, Resident Of Bharatpura, Rampur, Mewada,
Dungarpur, Rajasthan.
21. Kavya Pandya S/o Ghanshyam Sharma, Aged About 21
Years, Resident Of B-339, Punarwas Colony, Sagwara,
Dungarpur, Rajasthan.
22. Mahendra Kumar S/o Deva Ram, Aged About 25 Years,
Resident Of Meghwalo Ka Vas, Ummedabad, Tehsil Jalore,
Rajasthan.
23. Masood Akbar S/o Mohd. Akbar Bhat, Aged About 24
Years, Resident Of Haigam, Tehsil Sopare, Dist. Baramula,
Jammu And Kashmir.
24. Mava Ram S/o Hira Ram, Aged About 21 Years, Resident
Of Kura, Kuda, Jalore, Rajasthan.
25. Mehnaz Akhter D/o Zulfkar Ahmed, Aged About 23 Years,
Resident Of Village Nagrota, Rajouri, Jammu And Kashmir.
26. Mudassir Hussain S/o Farooq Ahmed, Aged About 23
Years, Resident Of Pranu Manlnai Doda, Jammu And
Kashmir.
27. Murtaza Mehraj S/o Mehraj Ud-Bin Shah, Aged About 22
Years, Resident Of Mashwara, Keller Shopian, Jammu And
Kashmir.
28. Musarrat Manzoor S/o Manzoor Ahmed, Aged About 25
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Years, Resident Of Mangota, Dist Doda, Jammu And
Kashmir.
29. Muzzafer Anayet S/o Anayet Ullah, Aged About 28 Years,
Resident Of Sarak, Doda, Jammu And Kashmir.
30. Neeru Devi D/o Tarlok Chand, Aged About 23 Years,
Resident Of Village Lambehri, Tehsil Nowshera, Dist.
Rajouri, Jammu And Kashmir.
31. Neetu Chouhan D/o Himmat Singh, Aged About 22 Years,
Resident Of Regar Colony Bhim, Rajsamand, Rajasthan.
32. Neha Chouhan D/o Yog Raj Chouhan, Aged About 21
Years, Resident Of Sohal, Paddar, Atholi, District Kishtwar,
Jammu And Kashmir.
33. Nisha Sagar D/o Ram Dutt Sagar, Aged About 24 Years,
Resident Of Vikram Nagar, Nimbahera, Chittorgarh,
Rajasthan.
34. Patel Harsh Manu Bhai S/o Manu Bhai, Aged About 22
Years, Resident Of Samlapur, Sabarkantha, Gujarat.
35. Patel Harsh Kumar Ashok S/o Patel Ashok Bhai, Aged
About 23 Years, Resident Of Kamalpur Idar, Sabarkantha,
Gujarat.
36. Patel Tanmy Pravin Bhai S/o Pravin Bhai, Aged About 22
Years, Resident Of Umedpura, Sabarkantha, Gujarat.
37. Piyush Dayma S/o Shanti Lal Dayma, Aged About 23
Years, Resident Of Village Kharwa, Tehsil Masuda, Dist.
Ajmer, Rajasthan.
38. Rahul Tank S/o Ram Lal Ji Tank, Aged About 24 Years,
Resident Of Village Bhanuja, Tehsil Badisadri, Dist.
Chittorgarh.
39. Saima Choudhary D/o Maneer Hussain, Aged About 22
Years, Resident Of Village Kalal Kaas, Rajouri, Jammu And
Kashmir.
40. Saima Kousar D/o Babu Khan, Aged About 22 Years,
Resident Of Village Nagrota, Rajouri, Jammu And Kashmir.
41. Seema Bamaniya D/o Kalu Ram, Aged About 21 Years,
Resident Of Village Chokri, Post Badi Padal, Tehsil Ghatol,
Dist. Banswara, Rajasthan.
42. Seema Choudhary D/o Ved Prakash, Aged About 24
Years, Resident Of Village Lambehri,tehsil Nowshera, Dist.
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Rajouri, Jammu And Kashmir.
43. Suneha Kumari D/o Wazir Singh, Aged About 23 Years,
Resident Of Village Sailsul, Tehsil Kalakote, Dist. Rajouri,
Jammu And Kashmir.
44. Susheel Kotwal S/o Vedraj Kotwal, Aged About 24 Years,
Resident Of Village Bhallara, Nai, Dist. Doda, Jammu And
Kashmir.
45. Susheel Kumar S/o Jaia Lal, Aged About 24 Years,
Resident Of Ungaie, Paddar, Tehsil Atholi, Dist. Kishtwar,
Jammu And Kashmir.
46. Uday Singh Bairwa S/o Prathviraj Bairwa, Aged About 23
Years, Resident Of Basai, Dulapura, Ateiwa, Karauli,
Rajasthan.
47. Umair Shafiq S/o Mohd. Shafiq, Aged About 22 Years,
Resident Of Mastpora, Keller, Shopian, Jammu And
Kashmir.
48. Vandana Sharma D/o Mohan Lal, Aged About 23 Years,
Resident Of Thanda Pani, Tehsil Sunder Bani, Dist.
Rajouri, Jammu And Kashmir.
49. Vishal Sevak S/o Jitendra Sevak, Aged About 22 Years,
Resident Of Badigama Chhota, Tehsil Sabla, Dist.
Dungarpur, Rajasthan.
50. Yawer Ahmad S/o Nazir Ahmed Wagay, Aged About 22
Years, Resident Of Rakh Narapora, Dist. Shopian, Jammu
And Kashmir.
51. Zeeshan Feroz S/o Feroz Ahmad Eitoo, Aged About 23
Years, Resident Of Maqdampora, Gori, Anantang,
Bijbehera, Jammu And Kashmir.
52. Zohara Banoo D/o Sadiq Hussain, Aged About 22 Years,
Resident Of Village Mandri Trigam, Kishtwar, Jammu And
Kashmir.
----Petitioners
Versus
1. The State Of Rajasthan, Through The Principal Secretary,
Department Of Health And Family Welfare, Government
Of Rajasthan, Secretariat, Jaipur.
2. The Rajasthan Nursing Council, B-39, Sardar Patel Marg,
C-Scheme, Jaipur Through Its Registrar.
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3. Sai Tirupati University, Village Umarda, Ambua Road,
Tehsil Girwa, District Udaipur, Rajasthan, Through Its
Registrar.
4. Venkteshwar College Of Nursing, Pacific Institute Of
Medical Science, Village Umarda, Ambua Road, Tehsil
Girwa, District Udaipur, Rajasthan Through Its Principal.
----Respondents
For Petitioner(s) : Ms. Avya Gupta for Mr. Rajat Dave
For Respondent(s) : Mr. Mahendra Vishnoi.
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order 16/08/2023
1. Learned counsel for the parties submit that the controversy involved in the present petition is no more res-integra, being covered by the decision rendered by this Court in Jaswant Sharma & Ors. Vs. State of Rajasthan & Ors. (S.B. Civil Writ Petition No.6131/2023) along with other connected matters, decided on 06.06.2023, the operative portion of which is reproduced as hereunder:-
"5. Heard learned counsel for the parties as well as perused the record of the case alongwith judgments cited at the Bar.
6. This Court observes that the petitioners ran the nursing courses for various academic years till the academic session 2022-23 and the affiliation/recognition for running the Courses in question has been granted by the respondent-INC and the petitioners did not get any NOC from the State Government. Thereafter, the respondent-RNC vide the impugned order 13.01.2022 has cancelled the affiliation of the petitioners on ground that the petitioners have not obtained the requisite No Objection Certificate from the State Government.(Downloaded on 12/11/2023 at 04:21:58 AM)
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7. This Court further observes that aggrieved by the aforesaid order, petitioners preferred the writ petition, which was decided with certain directions, as mentioned hereinabove. Thereafter, the petitioners submitted representations before the State Government, but the same were rejected by the impugned order dated 18.04.2023.
8. This Court further observes that the impugned orders passed by the respondents clearly stated that the petitioners have not obtained the requisite NOC from the State Government, in accordance with Clause 3 of the Guidelines and Minimum Requirements to Establish General Nursing & Midwifery School of Nursing issued by the Indian Nursing Council. The said clause 3 is reproduced as hereunder:
"3. The eligible Establishments/Organizations should obtain Essentiality Certificate/No Objection Certificate from the concerned State Government where the GNM School of Nursing is sought to be established. The particulars of the name of the School/Nursing Institution along with the name of the Trust/Society [as mentioned in the Trust Deed or Memorandum of Association] as also full address shall be mentioned in No Object Certificate/Essentiality Certificate."
9. This Court also observes that the aforesaid criteria was also dealt with in the judgment rendered in the case of The Registrar, Rajasthan Nursing Council (Supra); relevant portion whereof reads as under:
"16. Unfortunately, the regulations were not brought to the notice of the Single Bench. The regulations being statutory have to prevail. It is apparent from Regulation No. 1 that NOC/Essentiality Certificate from State Government is necessary to open a School/College of Nursing Second requirement is to be fulfilled is that permission has to be given by the INC to start the programme of school/college and thereafter, approval from the State Nursing Council is required in case, college has permission and affiliation, NOC for school has also to be obtained as per Regulation 4, student can be admitted only after approval of the State Nursing Council (Downloaded on 12/11/2023 at 04:21:58 AM) (7 of 11) [CW-7253/2022] and affiliation by University in case of college, as the case may be.
17. School of Nursing is a different entity than College of Nursing. Even the note appended to the Regulations makes it clear that when School of Nursing wants to be upgraded to College of Nursing, NOC/Essentiality Certificate is not required, with that situation we are not concerned in the matter. It is also not provided in the note that when the B.Sc. level Nursing college wants to start the School of Nursing, NOC from the State Government is not necessary. Regulation 1 clearly requires NOC from State Government for a school. Thus, in our considered opinion, due to non-consideration of the regulations, as they were not placed for consideration, the Single Bench could not appreciate the correct legal position. The regulations framed under Section 16 of Act of 1947 have the statutory force and are binding. Thus, it was not necessary to go into the various provisions contained in the Act of 1947 and Act of 1964 as they do not deal with aforesaid aspect. The education being State subject also, in concurrent list, State Government cannot permit mushroom growth of the institutions. The State Government essentially comes into play in such matters, as such, aforesaid provision has rightly been made in the statutory regulations of 2007 framed by the INC under the Act of 1947, which have to prevail.
18. Certain guidelines with respect to ANM and GNM Course been relied upon by the Counsel appearing on behalf of institutions as well as INC, which are as follows:
ANM GUIDELINES TO START A.N.M. COURSE * Any organization under the Central Government, State Government Local body or a Private or Public Trust, Mission, Voluntary registered under Society Registration Act or a Company registered under company's Act wishes to open an ANM Training (Downloaded on 12/11/2023 at 04:21:58 AM) (8 of 11) [CW-7253/2022] School, should obtain the No Objection/Essentiality certificate from the State Government. * If any Nursing Programme is recognised by Indian Nursing Council then the institution will be exempted from NOC/Essentiality Certificate for A.N.M. from the State Government.
* The Indian Nursing Council on receipt of the proposal from the Institution to start ANM training program, will undertake the first inspection to assess suitability with regard to physical infrastructure clinical facility and teaching faculty in order to give permission to start the programme.
* After the receipt of the permission to start ANM training program from Indian Nursing Council, the institution shall obtain the approval from the State Nursing Council and Examination Board. GNM GUIDELINES TO START G.N.M. COURSE * Any organization under the Central Government, State Government, Local body or a Private or Public Trust, Mission, Voluntary registered under Society Registration Act or a Company registered under company's Act wishes to open a School or Nursing should obtain the NO Objection/Essentiality certificate from the State Government.
* If any Nursing Programme is recognised by Indian Nursing Council, then the institution will be exempted from NOC/Essentiality Certificate for G.N.M. from the State Government.
* The Indian Nursing Council on receipt of the proposal from the Institution to start nursing programme, will undertake the first inspection to assess suitability with regard to physical infrastructure, clinical facility and teaching faculty in order to give permission to start the programme.
* After the receipt of the permission to start the nursing programme from Indian Nursing Council, the institution (Downloaded on 12/11/2023 at 04:21:58 AM) (9 of 11) [CW-7253/2022] shall obtain the approval from the State Nursing Council and Examination Board.
20. Firstly, the guideline that Nursing Programme is recognized by the INC then the institution will be exempted from NOC/Essentiality Certificate from the State Government is contrary to regulations which have to prevail. It is a case of opening of the school itself.
There is no ANM Training School and School of nursing, running as such, the permission from State Government is imperative even under the guidelines recognition of college is different from recognition of school level programme. Section 10 of the INC Act deals with the recognition of qualifications. Section 11 deals with the effect of recognition. Recognition of course and permission to start school are different aspects. Once, recognition of qualification is obtained, that shall sufficient to get enrolled in any State register. In the instant case, permission has been granted to run the ANM Training School/School of Nursing which further subject to regulations No. 1 of the Regulation of 2007 which have the statutory force. NOC/Essentiality Certificate from the State Government is imperative. The guidelines cannot supersede the provision made in the regulations which have the statutory force. Regulation No. 1 of the Regulation of 2007 makes it clear that institution is required to produce NOC/Essentially certificate from the State Government, only then the INC can grant permission under the Regulation 2. Guide liens cannot be repugnant to the statutory regulations; Regulations of 2007 have to prevail. Though, the guidelines cannot be interpreted so as to supersede the Regulations, guidelines are subordinate to regulation and for internal functioning of INC and cannot be said to be having statutory force. If guidelines are followed, anomalous result would arise and that is not so contemplated guidelines also. When we deal with the question of permission as envisaged in Regulation No. 2, which has been granted on 20.7.2012, Regulation Nos. 1 and 2 cannot be ignored. Thus, the (Downloaded on 12/11/2023 at 04:21:58 AM) (10 of 11) [CW-7253/2022] NOC/Essentiality certificate is necessary for opening ANM/GNM Training School/School of Nursing. Merely running of Nursing College of B.Sc. level cannot come to rescue so as to absolve the institutes from complying with the imperative statutory requirement of obtaining NOC/Essentiality certificate from the State Government. Thus, we are of the considered opinion that the order passed by Single Bench is liable to be set aside.
22. Thus, we are also of the considered opinion on consideration of the provision of Regulation 1 of the statutory regulations framed in 2007 by the INC under Section 16 of the INC Act, 1947 and that School of Nursing and College of Nursing being different entity, NOC/Essentiality certificate is imperative to be obtained from the State Government before Rajasthan Nursing Council can take up the matter for recognition/affiliation."
10. This Court also observes that issuance of the NOC for the Course in question by the State Government is necessary for running the Nursing Institution, and that, the State Government have powers under the law to grant or cancel the affiliation/recognition, if the institution concerned is violating the requisite norms. In the present case, the petitioners-institutions were being run without any NOC from the State Government, and the respondent-RNC cancelled affiliation/recognition, on that count.
11. This Court further observes that the role of the State Government in determining whether the NOC is to be granted or not, because the State Government, amongst other regulatory bodies, has to ensure fulfilment of each and every norm laid down for the institutions. The education, more particularly pertaining to the Course in question, is quite significant for the country, and that, the institutions imparting such education, must have proper management, infrastructural facilities etc. for the same.
12. In light of the aforesaid observations and in light of the judgment rendered in the case of The Registrar, Rajasthan Nursing Council (Supra) and looking into the factual matrix of the present case, this Court does not find it a fit case so as to grant any relief to the petitioners in the present petitions.
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13. Consequently, the present petitions are dismissed. All pending applications stand disposed of."
2. In light of aforequoted judgment, the present writ petition is dismissed in terms of the order passed by this Court in Jaswant Sharma (Supra). All the remedies available to the petitioners in that case shall be available to the petitioners in the instant case also. All pending applications also stand disposed of.
(DR.PUSHPENDRA SINGH BHATI), J.
33-/Jitender//-
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