The court dismissed writ petitions challenging the cancellation of nursing course affiliation for lack of No Objection Certificate from the State Government, upholding the statutory requirement under INC regulations.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
S.B. Civil Writ Petition No. 6131/2023
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----Respondents
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Connected With
S.B. Civil Writ Petition No. 6092/2023
Versus
----Respondents
S.B. Civil Writ Petition No. 6158/2023
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----Petitioners
Versus
Versus
S.B. Civil Writ Petition No. 6293/2023
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Department Of Health And Family Welfare, Government Of Rajasthan, Secretariat, Jaipur.
S.B. Civil Writ Petition No. 7647/2023
S.B. Civil Writ Petition No. 7893/2023
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| For Petitioner(s) | : Mr. Vikas Balia, Sr. Adv. assisted by Mr. Rajat Dave. Mr. Shreyansh Mardia. Mr. Hemant Ballani. |
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| For Respondent(s) | : Ms. Vandana Bhansali, AGC (on VC) assisted by Ms.Vrinda Samdani. Mr. Y.P. Khileree assisted by Mr. Nitin Gehlot for INC. Mr. Sangram Singh for RNC. Mr. Mahendra Vishnoi. |
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Judgment
Reserved on 01/06/2023
Pronounced on 06/06 / 2023
“It is therefore, humbly prayed, that the present petition for writ in the nature of mandamus may kindly be allowed and by an appropriate writ / order or directions:-
(i) The action of the respondent state authorities insisting for seeking NOC for upgradation of the courses of B.Sc. Nursing, P.B. Bsc. Nursing and M.Sc. (N) may kindly be declared illegal and the same may kindly be quashed and set aside.
(ii) the impugned orders dated 18.04.2023 (Annx-14) issued by the respondent State rejecting the representation may also kindly be quashed and set aside. (iii) The order dated 13.01.2022 (Annex.-9) cancelling the affiliation / recognition of the petitioner for the academic session 2021-22 may kindly be quashed and set aside with all consequential directions
(iv) The students passed out from the petitioner university whose qualification of B.Sc., PB B.Sc and M.Sc. Nursing Courses recognized by the INC under the act of 1947 may
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kindly be declared eligible and appropriate directions may kindly be issued to register the students in the State Register of respondent no.2 and their degree granted stands to be recognized with all consequential directions;
(v) by an appropriate writ, order or direction, it may be declared that in terms of schedule II of the Act of 2014, the petitioner is not required to sought any no objection certificate from the State Government to run the courses mentioned in schedule II of the Act of 2014.
(vi) Any other appropriate order or direction, which this Hon’ble Court considers just and proper in the facts and circumstances of this case, may kindly be passed in favour of the petitioner;
(vii) Costs of the writ petition may kindly be awarded to the petitioner.”
2.1. The petitioner no.1 is a University (Promoted by Tirupati Balaji Educational Trust) established and incorporated under the Pacific Medical University Udaipur Act, 2014; the petitioner no.2 is a Nursing College established in the campus of the petitionerUniversity. The Nursing Courses is the Undergraduate and Post Graduate Courses, particularly GNM, B.Sc. Nursing and P.B. B.Sc. Nursing.
2.2. The petitioner-University submitted an application for
seeking a No Objection Certificate (NOC) from the State Government to conduct the GNM Course, as well as for upgradation of the institution to run the B.Sc. (N) & M.Sc. (N) programmes. The State Government vide its communication dated
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17.12.2015 stated that they have no objection, if the Indian Nursing Council (INC) grants such NOC. Thereafter, the petitionerUniversity submitted the application before the INC, whereupon, the INC got the inspection conducted, and after due verification, granted recognition to the petitioner to run GNM, B.Sc. Nursing as well as M.Sc. Nursing Courses for the academic session 20162017; thereafter, the same continued from time to time, till the academic session 2022-2023.
2.3. The respondent-Rajasthan Nursing Council (RNC) also issued affiliation order with respect to Courses of B.Sc. Nursing, P.B.B.Sc. However, after five years of running the Courses, the Registrar of the RNC vide order dated 13.01.2022 cancelled the affiliation, for three different Courses, of the petitioner-University for the academic session 2021-2022, for lack of grant of NOC by the State Government, for the same.
2.4. The petitioners preferred a writ petition bearing S.B. Civil Writ Petition No.3755/2022 before this Hon’ble Court; wherein vide order 21.03.2022, the operation of the said order dated 13.01.2022 was stayed; thereafter, on 02.02.2023, the writ petition was disposed of with a direction to the petitioners to file a fresh representation before the respondent-State within a period of one week; in the event of the representation having been filed by the petitioners within the said period, the same shall be decided preferably within a period of two weeks from the date of receipt of a certified copy of the order.
2.4.1. In pursuance of the aforesaid order, the petitioner moved a representation before the respondent-State, but the same was
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rejected vide the impugned order dated 18.04.2023 (received by the petitioner on 18.05.2023), while referring to Clause 3 of the Guidelines of the Indian Nursing Council.
2.5. Thus, being aggrieved, the petitioners have preferred these writ petitions claiming the afore-quoted reliefs.
3.1. It was further submitted that after five years of running the Courses, without giving the opportunity of hearing nor even calling for any explanation, the respondent-RNC passed the impugned order, cancelling the affiliation of the petitioners for academic session 2021-22, on the ground that the petitioners have not obtained the NOC from the State Government, which is not justified in law.
3.2. It was also submitted that the impugned order of rejection of the representation of the petitioner, specifically refers to Clause 3 of the INC Guidelines, which provides that eligible establishments/ organizations should obtain the essentiality certificate/ NOC from the concerned State Government, where GNM School of Nursing is sought to be established. In furtherance, it was submitted that the said Guidelines are not applicable to the petitioners, as it is pertaining to the Colleges, who wishes to establish itself after
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coming into force of the Guidelines; whereas, the petitionersinstitutions were established much prior to coming into force of such Guidelines.
3.3. It was further submitted that the respondent-INC is a statutory body and already authorized the petitioners to run the Course in question, even for the academic session, subsequent to the session pertaining whereto the impugned order was passed; therefore, on that count also the petitioners exempted from obtaining the NOC from the State Government.
4.1. It was further submitted that the INC has powers under the Indian Nursing Council Act, 1947 to recognize nursing qualifications awarded by various authorities, and the statute has clearly prescribed that “Any authority within the States which, being recognized 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
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after a specified date shall be recognised qualification for the purposes of this Act.”
4.2. It was also submitted that the criteria for establishment of a Nursing Institution is to obtain essentiality certificate/No Objection Certificate (NOC) from the concerned State Government, where the concerned Nursing School is sought to be established; the same is a mandatory requirement to be complied with for establishment of a Nursing Institutions. Thus, as per learned counsel, since the present petitioners have not been issued the requisite NOC by the State Government, therefore, the impugned action on the part of the respondents is justified in law.
4.3. It was further submitted that the earlier the same controversy arose in the case of Hitesh Kumar Sharma & Ors. Vs. State and Ors. (S.B. Civil Writ Petition No.13990/2016, decided by a Coordinate Bench of this Hon’ble Court on 07.02.2018) , relevant portion of which, as relied upon, reads as under:
“The issue as to whether the courses offered by a University created by law or under the law requires to be further recognized by any other authority or not is no more res integra in view of the judgment rendered by the learned Single Bench of this Court in the case of Sunil Bishnoi & Ors. Vs. State of Rajasthan & ors. (SB Civil Writ Petition No.8149/2015) decided on 01.02.2018 , wherein the courses offered by Singhania University, Pacheri Bari, Jhunjhunu were held to be automatically recognized as the said University was established under the Statute relying on the judgment rendered by the Apex Court in the case of Dr. B.L. Asawa Vs. State of Rajasthan & Ors. reported in AIR 1982 SC 933 as well as the judgment rendered by this Court in the case of Mrs.
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Madhu Santosh Vs. State of Rajasthan (S.B. Civil Writ
Petition No. 2502/1989 ) and the decision of Punjab & Haryana High Court rendered in the case of Ms. Neelam Devi & Anr. Vs. Haryana Nurses Registration Council & Ors. reported in 2010 158 PLR 323 . While allowing the writ petition, the learned Single Bench observed as under :
“As stated earlier, it is not in dispute that the respondent No.3-University is a University established under the statute and, therefore, in view of the law laid down in the above referred cases that a degree, diploma or any qualification awarded by any University, established under the statute, is automatically recognized and needs no recognition by any other authority, there is no hesitation in holding that the respondent No.2-RNC cannot refuse to register the petitioners under the provision of Act of 1964 on the ground that the respondent No.3University, from which the petitioners have completed GNM and ANM courses, is not recognized by the INC.”
The judgment relied on by learned counsel for the respondent No.3 in the case of Lohade Ram Meena’s case (supra) relates to a deemed University and cannot be equated with the University established under a Statute.
The respondent – Pacific Medical University was constituted vide Gazette notification published in Rajasthan Gazette on 25.09.2013, wherein the schedule annexed with the notification entitles the University to conduct various specified courses. In the schedule, the University was authorised to conduct courses of the Para Medical Subjects. It is not disputed that the respondent University is established under a statute. Hence, while deciding the writ petition being covered by the judgment rendered by this Court in the case of Sunil Bishnoi (supra), the present writ petition is allowed only to the extent that the respondent No.3 shall register the petitioners, in case they are otherwise found eligible. Needful be done within one month of the receipt of this order.”
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4.3.1. The said judgment dated 07.02.2018, upon being challenged by way of preferring special appeal, was upheld by the Division Bench of this Hon’ble Court in D.B. Spl. Appl. Writ No.629/2018 (Rajasthan Para Medical Council Vs. Hitesh
Kumar Sharma & Ors. decided on 25.05.2018. However, in the SLP No.21841/2018 preferred before the Hon’ble Supreme Court against the judgment rendered by the Hon’ble Division Bench, an interim order staying the operation of the judgment dated 25.05.2018 was passed; the said SLP is pending adjudication before the Hon’ble Supreme Court.
4.4. It was also submitted that it is mandatory for the institutions concerned to obtain the NOC from the State Government for running the Nursing College; whereas, in the present case the institutions are running the Courses without the requisite NOC from the State Government, which is clearly impermissible under the law. In support of such submission, reliance was placed upon the judgment rendered by a Division Bench of this Hon’ble Court in the case of The Registrar, Rajasthan Nursing Council Vs. Asha Devi Institute of Nursing & Ors. (D.B. Special Appeal (Writ) No. 568 of 2012, decided on 24.08.2012).
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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.
“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.”
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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 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.
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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 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.
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.
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* 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 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
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Regulation No. 2, which has been granted on 20.7.2012, Regulation Nos. 1 and 2 cannot be ignored. Thus, the 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.”
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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.
(DR.PUSHPENDRA SINGH BHATI), J.
skant/-
2 issues framed by the court
Whether the petitioners were required to obtain a No Objection Certificate from the State Government to run nursing courses despite recognition from the Indian Nursing Council and the university being
Whether the Rajasthan Nursing Council's cancellation of affiliation for lack of NOC was legally justified?
Colour shows how this judgement treated each authority
Hitesh Kumar Sharma & Ors. Vs. State and Ors.Referred¶246
S.B. Civil Writ Petition No.13990/2016 (Hitesh Kumar Sharma & Ors. Vs. State and Ors.)
Rajasthan Para Medical Council Vs. Hitesh Kumar Sharma & Ors.Referred¶257
D.B. Spl. Appl. Writ No.629/2018 (Rajasthan Para Medical Council Vs. Hitesh Kumar Sharma & Ors.)
The Registrar, Rajasthan Nursing Council Vs. Asha Devi Institute of Nursing & Ors.Followed¶259
D.B. Special Appeal (Writ) No. 568 of 2012 (The Registrar, Rajasthan Nursing Council Vs. Asha Devi Institute of Nursing & Ors.)
2 provisions across 2 enactments
Jaswant Sharma
Deva Ram
Vikash Saran
Hasmukh Singh Rajpurohit
Mannu Bairagi
The State of Rajasthan
Pushpendra Singh Bhati
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
