Shri Ram Shiksha Samiti (Saraswati ... vs State Of Rajasthan on 4 November, 2022

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Rajasthan High Court - Jodhpur

Shri Ram Shiksha Samiti (Saraswati ... vs State Of Rajasthan on 4 November, 2022

Judgment Pronounced on : 04/11/2022 The basic relief sought for in all these writ petitions revolves around the order dated 07.06.2022 passed by the Principal Secretary, Medical and Health Department (Group-III) Government of Rajasthan Jaipur vide which "No Objection Certificate/ Essentiality Certificate" for enhancement of seats/ establishment of colleges has either been denied/ rejected or is pending consideration before the State Government and thus all consequential benefits flowing therefrom have been denied to the respective petitioners institutions. Besides this relief, in some of the writ petitions, it is also prayed that the respondents may be directed to include the name of the petitioners institutions in the list of eligible institution for the purpose of counselling in GNM/ B.Sc Nursing course with enhanced intake capacity of students for Academic Session 2022-23.

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(61 of 74) [CW-3962/2022] Since in all these writ petitions, the principal grievance of the petitioners institutions is for quashing the condition of 100 bedded own hospital enumerated in the order dated 07.06.2022 passed by the Principal Secretary, Medical and Health Department (Group- III), Government of Rajasthan Jaipur, with the consent of all the learned counsel for the parties, the present batch of writ petitions is being heard and decided by this common judgment.

For ready reference, the impugned condition of 100 bedded own hospital enumerated in the order dated 07.06.2022 reads as under:

"(A) futh {ks= esa uohu uflZax Ldwy@dkWyst [kksyus gsrq uhfr ,oa izfØ;k%& • ,sls futh fo'ofo|ky; tks esfMdy dkWyst lapkfyr dj jgs gSa ;k ,slh laLFkk,sa tks esfMdy dkWyst lapkfyr dj jgh gSa vFkok ,slh laLFkk,sa tks Lo;a dk 100 cSM la[;k dk gkWLihVy lapkfyr dj jgh laLFkkvksa dks ekU;rk gsrq vkosnu djuk gksxkA"

The core question which is to be decided in the present batch of writ petitions is that:

"Whether the State Government can impose a condition of having 100 bedded own hospital to get "No Objection Certificate" for establishment of the Nursing Colleges/enhancement of the seats in such Colleges?"

Learned counsel appearing for the petitioners institutions while restricting their submissions only to the question framed hereinabove prayed that the condition of 100 bedded own hospital enumerated in the impugned order dated 07.06.2022 may be quashed and as a consequence thereof, the benefits flowing therefrom may be granted to the petitioners Institutions. Learned counsel also submitted that the petitioners Institutions have constructed the requisite infrastructure and all other facilities as (Downloaded on 04/11/2022 at 08:58:52 PM) (62 of 74) [CW-3962/2022] per the guidelines of the Indian Nursing Council and have preferred an application for the purpose of granting "No Objection Certificate" from the State Government in accordance with law. It is also asserted that the inspections of some of the institutions have already been done by the Rajasthan Nursing Council and the recommendations have also been made in favour of the institutions as those institutions fulfill the guidelines mandated in the regulations of the Indian Nursing Council (Revised Regulations & Curriculum for B.Sc Nursing Program) Regulations, 2020 (hereinafter referred to as 'the Regulation, 2020').

It is also argued that some of the Institutions are in vogue for last many years imparting Nursing education and since they intend to enhance their intake capacity of students, they have applied for increase in the number of seats. Since the procedure for establishment of an Institution and for enhancement of the seats is same, therefore, the same procedure has been followed by the respective institutions.

Learned counsel for the petitioners vehemently submitted that despite the Institutions having all the requisite infrastructure in consonance with the norms laid down by the Indian Nursing Council, they are being denied the "No Objection Certificate" by the State Government and the only reason for denial of the "No Objection Certificate" is the condition of 100 bedded own hospital mentioned in the order dated 07.06.2022 issued by the State Government. Learned counsel for the petitioners further submitted that such condition is in gross violation of the eligibility conditions laid down by the Indian Nursing Council. Learned counsel for the petitioners argued that such addition or inclusion of the condition is not within the domain of the State Government and by virtue of (Downloaded on 04/11/2022 at 08:58:52 PM) (63 of 74) [CW-3962/2022] inclusion of such condition by the State Government, the norms/ regulations made by the Indian Nursing Council are breached/overreached.

It is also contended that the power for imposing eligibility condition is vested with the Central Regulatory Body i.e. Indian Nursing Council and therefore, the State cannot impose any other condition for grant of "No Objection Certificate". Learned counsel submitted that the Indian Nursing Council has prescribed the Standards of Nursing Education to be followed throughout the country and therefore, there has to be uniformity of the Standards in the country and a particular State cannot add or amend any condition which is not prescribed in the notification/ norms of the Indian Nursing Council.

Learned counsel for the petitioners on the strength of the object of the Indian Nursing Council Act, 1947 have also tried to persuade this Court that the condition enumerated in the order dated 07.06.2022 is practically changing the eligibility condition prescribed by the Indian Nursing Council and thus, in the State of Rajasthan, there would be a different set of rules for getting "No Objection Certificate" in such cases.

Learned counsel for the petitioners asserted that the legislative competence of the Parliament and the Legislatures of the State to make laws under Article 246 of the Constitution of India is regulated by the Seventh Schedule of the Constitution. The Central Government and its functionaries are the only competent authorities to coordinate and determine the Standards of education in the Institution for higher education or research and scientific and technical institutions and therefore, by virtue of Indian Nursing Council Act, 1947, the Standards have been (Downloaded on 04/11/2022 at 08:58:52 PM) (64 of 74) [CW-3962/2022] prescribed by the Indian Nursing Council. Learned counsel therefore, submitted that any deviation or addition in the Standards laid down by the Indian Nursing Council will be in violation of the Central Act.

Learned counsel for the petitioners submitted that for the purpose of imparting practical training to the Nursing Students, the institutions must have a parent hospital as mentioned in the Regulation, 2020. The eligibility criteria of being a parent hospital has elaborately been mentioned in the Regulation, 2020 which takes care of the fact that a nursing institution should have 100 bedded parent hospital as per the norms prescribed in the Regulation, 2020 for imparting practical training to the nursing students, therefore, there is no requirement of having 100 bedded own hospital for institution/college.

Learned counsel for the petitioners further submitted that even as per Section 3 of the Rajasthan Nurses, Midwives, Health Visitors and Auxiliary Nurse-Midwives Registration Act, 1964 (hereinafter referred to as 'the Act of 1964'), power has been conferred to the State Government to establish by Official Gazette a Council to be known as Rajasthan Nursing Council and as per Section 10 of the Act of 1964, authority and power has been granted to the Council to make regulations consisting with this Act and the Rules made thereunder. He further submitted that as per Section 24 of the Act of 1964, power has been granted to the Council to make regulations after duly notifying in the official gazette for the purposes mentioned therein and the Rules and Regulations as laid down shall confirm to the Central Legislation i.e. the Indian Nursing Council Act, 1947. Learned counsel also submitted that since the Indian Nursing Council is holding the field (Downloaded on 04/11/2022 at 08:58:52 PM) (65 of 74) [CW-3962/2022] for prescribing the uniform Standards, the State Government by virtue of the order dated 07.06.2022 has virtually amended/ inserted the condition which is not within their domain. He further submitted that by virtue of addition of such condition, the petitioners Institutions in Rajasthan will be discriminated viz-a-viz other similarly situated Institutions in the other States of the country. To buttress their contention, learned counsel for the petitioners relied upon the judgment of the Hon'ble Supreme Court in the case of State of T.N. & Ors vs. Adhiyaman Educational & Research Institute and Ors., (1995) 4 SCC

104. Learned counsel for the petitioners, therefore, prayed that the writ petitions may be allowed and the condition of 100 bedded own hospital enumerated in the order dated 07.06.2022 may be quashed and set aside and the petitioners may be granted "No Objection Certificate" and other consequential reliefs if they are meeting all other criteria as laid down in the regulations of Indian Nursing Council.

Per contra, Mr. Sandeep Shah, learned Senior Counsel cum Additional Advocate General appearing for the respondent, while supporting the impugned condition mentioned in the order dated 07.06.2022, submitted that it is well within the domain of the State Government to impose a condition for grant of "No Objection Certificate", if the same is in the larger interest of the State and the society. Learned Senior counsel submitted that because of the mushroom growth of the fake Nursing Institutions in the State of Rajasthan, this condition has been imposed. He also submitted that the Standards of the Nursing Education in the State is stagnating day by day on the ground that lots of Colleges which (Downloaded on 04/11/2022 at 08:58:52 PM) (66 of 74) [CW-3962/2022] are not meeting the requisite criteria have emerged and creating a threat to the health of the residents of the State of Rajasthan. To curb the menace of the Institutions which are not meeting the Standards, such condition has been imposed by the State Government. Learned counsel for the State further submitted that the State Government is well within its power to impose such condition as per the regulations issued by the Indian Nursing Council. There is a requirement for such Institutions to obtain "No Objection Certificate"/ Essentiality Certificate from the State Government. Since the Indian Nursing Council has mandated the State Government to issue Essentiality Certificate/'No Objection Certificate', the State Government is well within its rights to impose certain conditions to check the mushroom growth of ineligible Institutions in the State of Rajasthan imparting Nursing Education. He further submitted that there is no conflict between the Central Legislation and the condition imposed by the State vide order dated 07.06.2022. The condition of 100 bedded own hospital imposed by the State Government is just supplementary to the condition imposed by the Indian Nursing Council and the State can certainly impose additional conditions for the purpose of curbing the mushroom growth of ineligible Institutions in the State of Rajasthan. He, therefore, submitted that the condition of having 100 bedded own hospital in the order dated 07.06.2022 is just and proper. He, therefore, prayed that the writ petitions are devoid of merit and the same may be dismissed.

Mr. Manish Vyas, learned Additional Advocate General appearing on behalf of the State Government adopted the arguments of Mr. Sandeep Shah, learned Additional Advocate General and additionally submitted that to check the growth of (Downloaded on 04/11/2022 at 08:58:52 PM) (67 of 74) [CW-3962/2022] fake Nursing Colleges in the State of Rajasthan, a condition has been imposed vide the order dated 07.06.2022, whereby the organization (Trust) desirous of establishing Nursing School/ College must have their own hospital of 100 beds capacity. He submitted that by virtue of this condition, only genuine Institutions imparting the Nursing Education in the State will function for the greater benefit of the residents of the State and the Standards of Education imparted by the Private Institutions will enhance. He, therefore, submitted that the condition of 100 bedded own hospital imposed in the order dated 07.06.2022 is just, proper and correct.

I have considered the submissions made at the Bar and have gone through the pleadings.

Brief background for understanding the controversy in the present case is that Indian Nursing Council Act, 1947 was enacted with a purpose and object that the Indian Nursing Council is an autonomous body under the Government of India, Ministry of Health and Family Welfare Constituted under the Indian Nursing Council Act, 1947, enacted by Parliament, giving statutory powers to maintain uniform standards and regulation of nursing education all over the country. The Functions of the Indian Nursing Council are as under :-

"1. To establish and monitor uniform standards of nursing for nurse midwifes, auxiliary nurse midwifes and health visitors' education by doing inspection of the institutions.

2. To recognize the qualification(s) under section 10(2) [4) of the Indian Nursing Council Act, 1947 for the purpose of registration and employment in India and abroad.

3. To prescribe minimum standards of education and training in various nursing programmes and prescribe the syllabus & regulations for nursing programs under section 16 of the Indian Nursing Council Act, 1947.

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4. Power to withdraw the recognition of qualification under Section 14 of the Indian Nursing Council Act, 1947 in case the institution fails to maintain its standards under Section 14(1)(b) of the Act when 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.

5. To recognize Degree/Diploma/Certificate awarded by Foreign Universities.

6. To give approval for registration of Indian and Foreign Nurses possessing foreign qualification under Section 11(2)(a) of the Indian Nursing Council Act, 1947.

7. To maintain Indian Nurses Register for registration of nursing personnel."

It can, therefore, safely be presumed that to maintain uniformity of eligibility conditions in the Country, the Indian Nursing Council is a Supreme Body for maintaining the standards in the nursing programmes in the country. It is also noted that for the purpose, the Regulation of 2020 has also been notified and as per these Regulations, the eligible organization/ establishment must have their own 100 bedded parent hospital. The parent hospital has been described in the Regulation of 2020 which reads as under:-

1. Parent Hospital (Unitary/Single Hospital) College of Nursing should have 100 bedded parent/own hospital which is compulsory requirement.

Parent Hospital for a nursing institution having the same Trust/Society/Company which has established the nursing institution and has also established the hospital.

                                OR
         For    a     nursing   institution   (managed     by

Trust/Society/Company under Section 8), a 'Parent Hospital' would be a hospital either owned and controlled by the Trust/Society/Company or managed and controlled by a trustee/member/director of the Trust/Society/Company. In case the owner of the hospital is a trustee/member/director of the Trust/Society/Company, then the hospital would (Downloaded on 04/11/2022 at 08:58:52 PM) (69 of 74) [CW-3962/2022] continue to function as a 'Parent Hospital' till the life of the nursing institution.

The undertaking would also be to the effect that the trustee/member/director of the Trust/Society/Company would not allow the hospital to be treated 'Parent/Affiliated Hospital/ to any other nursing institution and will be for minimum 30 years (i.e. signed by all trustees/members/directors of Trust/ Society/Company) to the Undertaking to be submitted from the trustee/member/director of the Trust/Society/ Company.

The beds of Parent hospital shall be in one Unitary Hospital i.e. in same building/same campus. Further, the Parent Hospital shall be in the same State i.e. where the institution is located.

a) It is to be noted that once a particular hospital is shown as "Parent Hospital" and permission given to the nursing institution to conduct nursing courses, then, the permission/suitability granted would last as long as the said hospital is attached as a "Parent Hospital".

b) In case the trustee/member/director of the Trust/Society/Company withdraws the Undertaking given, in that case even the permission/suitability letter issued would be deemed to have lapsed/stand withdrawn with immediate effect."

The object behind imposing such condition is that an Institution which is imparting nursing education must have a hospital attached to it for imparting practical training to the students of nursing. The functionaries of the State Government are under an obligation to see that any Institute, which is violating the norms prescribed by the Indian Nursing Council, should be taken to task. If a particular Institute is having a parent hospital as per the Indian Nursing Council Regulation, the same is eligible for grant of 'No Objection Certificate as the College/Institution can impart practical knowledge/training to their students in a hospital.

The Regulation of 2020 does not prescribe that a Nursing College/ Institutions should have its own hospital for the simple (Downloaded on 04/11/2022 at 08:58:52 PM) (70 of 74) [CW-3962/2022] reason that for imparting practical training/education to its students, they must be attached to a hospital though it is not of their own. The only concept is for imparting practical training to the students of nursing and not to impose the condition that the practical training is to be imparted by the Institutions' own hospital. Since the Central Body i.e. Indian Nursing Council is vested with the power to prescribe the uniform standards of education throughout the country and if the condition of 100 bedded own hospital is inserted/imposed by the State Government, then the same would be in deviation from the uniformity being maintained throughout the Country.

The standard of education for imparting nursing education is reflected in the entry 66 of the Union List of Seventh Schedule and, therefore, maintaining standards of nursing education uniformally lies in the domain of Indian Nursing Council. The regulation framed therein has substantial checks and balances which are required to be adhered by the Institution/ Colleges. Thus, the argument of learned Additional Advocate General that the State has power to insert additional condition for grant of "No Objection Certificate" to check the running/establishment of fake institutions is noted to be rejected as the State can very well take appropriate measures under the law to stop the functioning/running of those fake institutions/colleges.

Even a bare perusal of order of State Government dated 07.06.2022 shows that it is an administrative order and has been passed without exercising power vested in the State Government under entry 25 of List III. Since the order dated 07.06.2022 is an administrative order imposing an additional condition of having 100 bedded own hospital, which changes the (Downloaded on 04/11/2022 at 08:58:52 PM) (71 of 74) [CW-3962/2022] criteria cannot be said to be a supplementary condition as prescribed in the Indian Nursing Council Regulations, rather the same would be in conflict with the definition of parent hospital mentioned in the Indian Nursing Council Regulation of 2020. Even otherwise, an order passed by the State Government which is in conflict with Central Legislation is beyond the legislative competence of the State. The view taken by this Court is also gainfully supported by the view taken by the Hon'ble Supreme Court in the case of Preeti Srivastava & Ors. vs. State of Madhya Pradesh & Ors., (1999) 7 SCC 120 which reads as under:-

Entry 66, List-I, Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions.

"Both the Union as well as the States have the power to legislate on education including medical education, subject inter alia, to Entry 66 of List-I which deals with laying down standards in institutions for higher education or research and scientific and technical institutions as also co-ordination of such standards. A State has, therefore, the right to control education including medical education so long as the field is not occupied by any Union Legislation. Secondly, the state cannot, while controlling education in the State, impinge on standards in intuitions for higher education. Because this is exclusively within the purview of the Union Government. Therefore, while prescribing the criteria for admission to the institutions for higher education including higher medical education, the State cannot adversely affect the standards laid down by the Union of India under Entry 66 of List-I. Secondly, while considering the cases on the subject it is also necessary to remember that from 1997 education including, inter alia, medical and university education, is now in the Concurrent List so that the Union can legislate on admission criteria also. If it does so, the State will not be able to legislate in this field, except as provided in Article 254."

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(72 of 74) [CW-3962/2022] The Hon'ble Supreme Court in the case of State of T.N. & Ors vs. Adhiyaman Educational & Research Institute and Ors., (1995) 4 SCC 104 also held as under :-

"43. What emerges from the above discussion is as follows:

(i) The expression "coordination" used in Entry 66 of the Union List of the Seventh Schedule to the Constitution does not merely mean evaluation. It means harmonisation with a view to fordge a uniform pattern for a concerted action according to a certain design, scheme or plan of development. It, therefore, includes action not only for removal of disparities in standards but also for preventing the occurrence of such disparities. It would, therefore, also include power to do all things which are necessary to prevent what would make "coordination" either impossible or difficult. This power is absolute and unconditional and in the absence of any valid compelling reasons, it must be given its full effect according to its plain and express intention.

(ii) To the extent that the State legislation is in conflict with the Central legislation though the former is purported to have been made under Entry 25 of the Concurrent List but in effect encroaches upon legislation including subordinate legislation made by the center under entry 25 of the Concurrent List or to give effect to Entry 66 of the Union List, it would be void and inoperative.

(iii) If there is a conflict between the two legislations, unless the State legislation is saved by the provisions of the main part of Clause (2) of Article 254, the State legislation being repugnant to the central legislation, the same would be inoperative.

(iv) Whether the state law encroaches upon Entry 66 of the Union List or is repugnant to the law made by the center under Entry 25 of the Concurrent list, will have to be determined by the examination of the two laws and will depend upon the facts of each case.

(v) When there are more applicants than the available situations/seats, the State authority is not prevented from laying down higher standards or qualifications than those laid down by the center or the central authority to short-list the applicants. When the State authority does so, it does not encroach upon Entry 66 of the union List or make a law which is repugnant to the Central law.

(vi) However, when the situations/seats are available and the State authorities deny an applicant the same on the ground that the applicant is not qualified according to its (Downloaded on 04/11/2022 at 08:58:52 PM) (73 of 74) [CW-3962/2022] standards or qualifications, as the case may be, although the applicant satisfies the standards or qualifications laid down by the Central law, they act unconstitutionally. So also when the State authorities derecognise or disaffiliate an institution for not satisfying the standards or requirement laid down by them, although it satisfied the norms and requirements laid down by the central authority, the State authorities act illegally".

The entire focus/ attention of the reply/ additional affidavits filed by the State defending imposition of this condition centers/ revolves around to curb the mushroom growth of the ineligible Colleges/ Institutions imparting nursing education. This Court feels that to stop the mushroom growth of ineligible institutes which are violating the Rules and Regulations, the State Functionaries on the basis of Regulation, 2020 issued by the Indian Nursing Council and the Act of 1964 have sufficient powers to act more vigilantly, stringently and these ineligible institutes must be dealt with iron hands but the same cannot be a ground to amend or alter the eligibility condition prescribed by the Central Body i.e. Indian Nursing Council. Even otherwise, in the opinion of this Court, the State Government has got ample powers to stop/close the ineligible institutions which are being run in the State of Rajasthan without following due process of law. This Court feels that against those persons who are operating such institutions, stern action should be taken. An onerous condition cannot be imposed in the State of Rajasthan putting the genuine eligible institutions to a disadvantage viz-a-viz their counter parts in the other States only on the ground that certain institutions who are running de hors the Rules are creating problems in the State of Rajasthan.

It is also noted that there are sufficient checks and balances in the Regulation, 2020 of Indian Nursing Council to confer the Essentiality Certificate/ No objection Certificate in favour of a particular institute which falls in the eligibility criteria. Thus, (Downloaded on 04/11/2022 at 08:58:52 PM) (74 of 74) [CW-3962/2022] imposition of an additional condition of having 100 bedded own hospital is de hors the law and discriminates the Institutions of the State of Rajasthan viz-a-viz other Institutions of the Country.

Even a close reading of the order dated 07.06.2022 speaks about the adherence to guidelines issued by the Indian Nursing Council, therefore, in the opinion of this Court imposition of an additional condition is not warranted.

In view of the discussions made above, the writ petitions are allowed. The answer to the question posed is that the State has no power to put an additional condition of having 100 bedded own hospital by the Nursing Institutions/college enumerated in the order dated 07.06.2022 and, therefore, the condition of having 100 bedded own hospital by the Nursing Institute/Colleges enumerated in the order dated 07.06.2022 is quashed and set aside. The State will process the cases of the petitioners Institutions/ Colleges individually for grant of "No Objection Certificate" in accordance with the Regulation, 2020 of the Indian Nursing Council and will not insist upon any College/ Institution to have its own 100 bedded hospitals.

Registry is directed to place a copy of this order in each connected file.

The stay application and other pending applications stand disposed of accordingly.

(VINIT KUMAR MATHUR),J 42-46 & 49-82, 84, 89 to 91, 93 to 101, 104, 105, 107 to 109, 111, 112, 114, 115, 40, 133, 161, 163, 183, 198, 221, 240, 255, 256, 257, 259, 260, 261, 262, 263, 267, 268, 337, 418 to 421, 423 to 430, 432 to 436, 438, 439 441 to 443, 454, 456, 459, 462, 463, 464 and 471 -SanjayS/Shahenshah/- (Downloaded on 04/11/2022 at 08:58:52 PM) Powered by TCPDF (www.tcpdf.org)

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Rajasthan High Court - Jodhpur