CWP No.17254 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 17254 of 2007 Date of decision: 19.12.2007 Shiv Shakti Educational Society (Regd.) -----Petitioner Vs. State of Punjab and others -----Respondents CORAM:- HON'BLE MR JUSTICE ADARSH KUMAR GOEL HON'BLE MR JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Charanjit Sharma, Advocate for the petitioner. Mr. Salil Sagar, Addl.A.G.Punjab for the State. Mr. Anupam Gupta, Advocate for the University. Mr. Munish Jolly, Advocate for Indian Nursing Council. Mr. SP Jain, Sr. Advocate with Mr. Dheeraj Jain, Advocate) Mr. DS Nalwa, Advocate) Mr. SS Narula, Advocate) Mr. KS Dadwal, Advocate) Mr. B.S.Bhalla, Advocate) (for the added respondents) JUDGEMENT 1. This petition seeks a direction for grant of permission to the petitioner for admission to 40 students to B.Sc Nursing Course 2007 in the College of Nursing of the petitioner-Society. Further direction sought is for quashing corrigendum dated 7.11.2007, CWP No.17254 of 2007 2 Annexure P.11, granting permission to admit students to certain institutions, on the basis of grant of 'consent of affiliation' by Baba Farid University, subject to the condition that registration of the said institutions will be done after permission from the Indian Nursing Council (INC). 2. Case of the petitioner is that it was registered as Society in the year 2002 and started imparting Nursing education for a Diploma course in G.N.M Nursing. It applied for issuance of 'No Objection Certificate' (NOC) for establishing/opening a Medical Education Institution for B.Sc Nursing Course on 24.12.2003. The said certificate was issued on 8.3.2006, Annexure P.1, subject to the condition that admissions will be made only after approval from respondent No.2 - INC and Baba Farid University - respondent No.4. The petitioner applied for grant of recognition to respondent No.3 – Punjab Nurses Registration Council (PNRC) which was granted on 21.9.2006. On 30.8.2006, inspection was carried out by respondent No.2 -INC and necessary approval was granted vide Annexure P.3. Respondent No.2 (INC) also issued Suitability/Recognition Certificate vide Annexure P.4 for intake of 40 seats. Respondent No.4 University after carrying out inspection vide letter dated 8.11.2006, Annexure P.5, informed the petitioner that there were certain deficiencies with regard to faculty, building maintenance, attached Hospital, Laboratories, hostel, teaching CWP No.17254 of 2007 3 rooms and library. The petitioner-Society applied for second inspection, which was conducted on 23.7.2007. The Committee which conducted the inspection, again submitted adverse report dated 7.8.2007, Annexure P.6. The petitioner applied for third inspection and again deficiencies have been pointed out vide letter dated 8.11.2007, Annexure P.9. The deficiencies do not exist in fact. The inspection reports are biased and for extraneous considerations. As against this, vide corrigendum dated 7.11.2007, seven institutes have been allowed to make admissions, though they had not been subjected to any inspection and no affiliation has been granted in their favour. Merely 'consent for affiliation' has been given, without any inspection. No approval has been given by the INC. 3. In the reply filed on behalf of respondent Nos. 1 and 3, (the State and the State Council), the stand taken is that approval of INC was not necessary for establishing the institute but was necessary only for registering the students for practice outside the State, which was clarified in para 5 of the affidavit of the INC itself dated 20.4.2007 filed in another writ petition, being CWP No.16436 of 2006, (Kular Medical Education and Research Society v. State of Punjab and others), a copy of which was Annexure R1/1, to the effect that establishment of a Nursing Institution required approval of the State Government and the State CWP No.17254 of 2007 4 Nursing Council and affiliation from a recognised Hospital. Role of Indian Nursing Council was to regulate Nursing profession and to set uniform standards and unless a Nursing Institution was approved by INC, persons obtaining degrees/diplomas were not entitled to register or practice 'outside the State'. As regards the corrigendum dated 7.11.2007, permission was granted to the institutes mentioned therein as per guidelines dated 6.5.1998, Annexure R1/3, which the petitioner did not fulfil and on account of that distinction, the petitioner was not allowed permission for admissions by the Punjab Nurses Registration Council for the Session 2007-08. The institutions mentioned in the corrigendum were already conducting Three Year Diploma Course after getting affiliation from the University and after taking the permission from the INC and possessed the necessary land, building and other infrastructure and difference in infrastructure required for B.Sc degree being very little, the said institutions had been allowed to make admissions. Respondent No.3 Punjab Nurses Registration Council conducted inspection of the infrastructure of the petitioner on 16th and 17th September 2006 and found certain shortcomings. Earlier, affiliation granted on 21.9.2006 was for the academic session 2006-07 for one year only but subsequently, deficiencies were found with regard to the faculty. Permission given to the petitioner by INC was also for the academic session 2006-07. CWP No.17254 of 2007 5 4. In the reply filed by respondent No.2 INC, it has been stated that the petitioner was granted permission and deficiencies found in the petitioner-Institution were not serious so as to make the petitioner unsuitable for B.Sc Nursing Course. As regards institutions mentioned in Annexure P.11, one institution Mata Sahib Kaur College of Nursing had been permitted, while Shiv Shakti College of Nursing, Sunam Road, Bhikhi, Bengal Institute of Health Sciences, Raikot and Rattan Professional Education Society, Sohana, Mohali were found not suitable. Mai Bhago College of Nursing, Tarn Taran and Baba Farid Educational and Medical Research Society, Faridkot had not applied for recognition. Kullar Medical Education and Research Society, Village Bija, District Ludhiana had applied for suitability for academic year 2008-09. The INC intended to take up the matter with respondent No.1 - State for permitting admission of students. Any institution making admissions had to conform to the standards prescribed by INC. 5. Stand of the University respondent No.4 is that in three inspections, the College of the petitioner was found to be deficient. The INC has laid down eligibility criteria norms for the Nursing Teaching Faculty vide circular dated 3.1.2007/12.3.2007, Annexure R4/1 collectively. The INC has also laid down norms for physical infrastructure and facilities under section 16 of the Indian CWP No.17254 of 2007 6 Nursing Council Act, 1947 (in short, 'the INC Act'), vide Anenxure R4/2, which envisages approval of an institution from the State Nursing Council and Examination Board/University, apart from inspection of the INC for giving permission for starting the programme. With regard to institutions mentioned in Annexure P.11, the University had received a intimation from the INC that admission for 2007-08 could not be allowed in the said institutions. 6. On 17.11.2007, following order was passed:- “Inspite of opportunity given, reply has not been filed so far. Counselling is said to have been concluded today. Since there are allegations that certain institutes have been included who do not have approval from the Indian Nursing Council and if students are admitted thereto, complications may arise, we direct that no further steps be taken in pursuance of counselling already concluded in respect of institutes mentioned in Annexure P.11, till the next date. Adjourned to 26.11.2007.” CM No.19466 of 2007 and CM No.19680 of 2007 were filed by Shiv Shakti Medical Society, Sunam Road, Bhikhi and Dr. Shyam Lal Thapar Education Institute respectively, which were dealt with vide order dated 12.12.2007 by this Court. The said institutions were excluded from the purview of interim order dated 17.11.2007. CWP No.17254 of 2007 7 Applications were also filed by Mata Sahib Kaur College of Nursing, Mai Bhago College of Nursing, Kullar College of Nursing and Baba Farid Educational and Medical Research Society for impleading as party on the ground that they were affected by the interim order dated 17.11.2007. The said applications were allowed and the applicants were ordered to be added as respondent Nos. 5 to 8. 7. We have heard learned counsel for the parties and perused the record. 8. The Indian Nursing Council has been constituted under the provisions of the Indian Nursing Council Act, 1947 ('the Central Act'), while the Punjab Nurses Registration Council has been constituted under the provisions of the Punjab Nurses Registration Act, 1932 ('the State Act'). 9. Learned counsel for the petitioner submitted that it having been granted approval by the INC, refusal of the University to grant affiliation on the basis of deficiencies pointed out, was arbitrary. It was also submitted that permission given to other institutes covered by Annexure P.11 without affiliation by the University or without any inspection by the University merely on the basis of consent for affiliation was not valid, particularly when no approval had been taken from the INC and the INC had raised an objection to admissions being allowed. Learned counsel for the CWP No.17254 of 2007 8 petitioner also relied upon judgment of this Court in Dr. Shyam Lal Thapar Nursing Foundation v. Baba Farid Unviersity of Health Sciences and others, 2006(3) SLR 38, to submit that once approval had been given by the INC, affiliation by the University was not required. 10. Learned counsel for the University submitted that there being deficiencies in the infrastructure of the petitioner-institution, the University was justified in not giving affiliation and permission to make admissions could not be given. Approval by the INC did not compel the University to give affiliation. He also submitted that permission for making admissions given to institutions covered by Annexure P.11 was illegal in absence of approval of the INC or affiliation by the University. It was submitted that State Nursing Council could deal only with the issues of registration or grant of diplomas and not the grant of degree for which the University was the exclusive authority. The INC itself had laid down that affiliation by the University was necessary. It was submitted that the INC having been established under the Central Act, the field being occupied by the Central legislation, the State Act could not prevail but the University being governed by the UGC Act, had autonomy in the matter of affiliation, which was independent of recognition or right to establish an educational institution. Reference was made to the judgments of the Hon'ble CWP No.17254 of 2007 9 Supreme Court in State of T.N. v. Adhiyaman Educational & Research Institute, (1995) 4 SCC 104, Thirumuruga Kirupananda Variyar Thavathiru Sundara Swamigal Medical Educational & Charitable Trust v. State of T.N., (1996) 3 SCC 15 , paras 3, 16, 17, 27 to 36, Unni Krishnan, J.P. v. State of A.P., (1993) 1 SCC 645, para 204 and P. A. Inamdar v. State of Maharashtra, AIR 2005 SC 3226, Paras 120, Ahmedabad St. Xavier College Society v. State of Gujarat, AIR 1974 SC 1389,Paras 13 to 18, 94 and 177, State of T.N. v. S.V. Bratheep, (2004) 4 SCC 513, paras 9 to 13, Bharathidasan unviersity and another v. All India Council for Technical Education and others, AIR 2001 SC 2861, Jaya Gokul Educational Trust v. Commr. & Secy. to Govt. Higher Education Deptt., (2000) 5 SCC 231 and Andhra Pradesh Christians Medical Educational Society v. Govt. of Andhra Pradesh, AIR 1986 SC 1490. It was submitted that the University had its own autonomy in the matter of affiliation and could have its own inspection as per INC norms and was not bound by the inspection conducted by the INC. It was submitted that there was conflict of judgments of the Hon'ble Supreme Court in Thirumuruga, Adhiyaman, Jaya Gokul on the one hand and Bharathidasan and S.V.Bratheep on the other, on the issue of autonomy of the University, vis-a-vis jurisdiction of a Central regulatory authority and the judgments of the Hon'ble CWP No.17254 of 2007 10 Supreme Court in Bharathidasan and S.V.Bratheep (supra) still hold the field. Learned counsel submitted that as per the scheme of the Central Act, read with regulations framed, No Objection/Essentiality Certificate was required from the State Government. Inspection was to be carried out by the INC for giving permission to start the programme. Thereafter, approval of the University was required and only then, admissions could be made. All the three requirements were independent and mandatory. The right of the University to grant or decline affiliation was not dependent on the decision of INC, as parameters to be applied by the University were not controlled by the Central Act and even higher standards could be laid down. There was system of checks and balances and grant of clearance by the INC did not bind the University. The University came into picture after the INC had cleared an institution. If affiliation was declined by the University arbitrarily, only remedy of affected party was to challenge the same in Court. 11. Learned counsel for the State submitted that INC approval was not required nor affiliation was required once the University had given 'consent for affiliation' and permission given to institutions mentioned in Annexure P.11 was justified, while denial of permission to the petitioner was also justified as the petitioner stood on different footing. The State Government had CWP No.17254 of 2007 11 also taken into account the need for giving employment and the University having given consent for affiliation, institutions mentioned in Anenxure P.11 could be given permission for making admissions, pending approval of the INC, which could be taken later. It was also submitted that under the scheme of the INC Act, regulation of statutory authorities, whose qualification was recognised, was only envisaged and not of the individual educational institutions and thus, prior approval of the INC was not required for admission. It was also submitted that approval of the INC had a bearing only for practising outside the State and registration for practice within the State did not require any approval of the INC. 12. Learned counsel for the Punjab Nurses Council relied upon a judgment of learned Single Judge of this Court in CWP No.837 of 1991 (Mata Amrit Kaur Welfare Trust (Regd.) v. The State of Punjab and others) decided on 23.5.1991, to submit that only Punjab Nurses Registration Council had the power to recognise an institution and not the INC. 13. Learned counsel for the added respondent Nos. 5 to 8 supported the stand of learned counsel for the State and learned counsel for the State Council. 14. The pleadings and the stand taken by the learned counsel for the INC, the University, the State, the State Council CWP No.17254 of 2007 12 and the added respondents are clearly at variance, which can be summarised as under:- (a) According to the stand of the INC and the learned counsel for the petitioner, approval of the INC was a must and no admissions could be made without that. However, the University ought to follow the approval of the INC. (b) According to the University, INC approval was a must but the University need not fall in line and could still decline affiliation. ( c ) According to the learned counsel for the State, the State Council and the added respondents, prior approval of the INC was not required and 'consent for affiliation' given by the University was enough, subject to 'No Objection' by the State and approval by the State Council. 15. Thus, following questions arise for consideration:- (i)Whether approval of the INC was required for making admissions? (ii)Whether the University could decline affiliation after approval has been granted by the INC? (iii)Whether the State Government or the State Nursing Council could allow admissions to be made for B.Sc Nursing Course in absence of there being approval by the INC or affiliation by CWP No.17254 of 2007 13 the University? (iv)Whether the petitioner was entitled to make admissions when the University had not granted affiliation and the State Nursing Council had declined to extend recognition? (v)Whether added respondent Nos. 5 to 8 could have been allowed to make admissions? 16. Before proceeding to deal with the above questions, relevant constitutional and statutory provisions may be noticed. The INC has been constituted to establish “a uniform standard of training for nurses, midwives and health visitors”. Section 3 of the Act provides for constitution of the INC. The INC is a body corporate comprising of elected representatives of various bodies. Section 10 provides for recognition of qualifications which have been included in Part I and Part II of the Schedule. Section 11 provides for the effect of recognition, which is to enable enrolment in any State register. Section 12 provides for power to require information as to courses of study and training and examination from any authority in any State granting such qualification. Section 13 provides for inspections of institutions recognised as training institutions for granting any qualification. Section 14 provides for withdrawal of recognition, inter-alia, if conditions for admission or standard of proficiency of the CWP No.17254 of 2007 14 candidates was not in conformity with regulations made under the Act. Section 15 provides for amendment of Schedule. Section 15- A provides for Indian Nurses Register, which will include names of all persons who are enrolled on any State Register. Section 16 confers power to make regulations and Clause (g) provides for prescribing the standard curricula for the training courses and Clause (h) provides for conditions for admission to the courses of training. Clause (i) provides for standards of examination and other requirements to be satisfied to secure qualifications recognised under the Act. The relevant extract is as under:- “16. Power to make regulations – (1) The Council may 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 powers, such regulations may provide for- (a) to (f) xx xx xx xx (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 recognised under this Act; CWP No.17254 of 2007 15 (j) xx xx xxxx xx” Annexure R4/1 (Colly) are documents laying down eligibility criteria for Nursing Teaching Faculty, Syllabus and regulations, loan for buildings, laboratories, staffing pattern. Annexure R4/2 are the regulations framed under Section 16 of the Act, forwarded vide letter dated 22.8.2006, laying down syllabus and requirements of infrastructure. It provides that any institution wishing to open a college of nursing was required to obtain NOC/Essentiality Certificate from the State Government, inspection by the INC to assess suitability of infrastructure and faculty and grant of permission for starting the Nursing programme. It also requires obtaining of approval from the State Nursing Council and Examination Board/University. It further provides that an institution will admit students only after approval from the State Nursing Council and the Examination Board/University. Detailed provisions for land or hostel, teaching faculty etc. have been made. The relevant extract from Regulation is as under:- “Revised Guidelines for School of Nursing and College of Nursing. 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/College of CWP No.17254 of 2007 16 Nursing, should obtain the No Objection/Essentiality Certificate from the State government. The Indian Nursing Council on receipt of the proposal from the Institution to start nursing program (School/College), 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/University. Institution will admit the students only after taking approval of state Nursing Council and examination Board/University. The Indian Nursing Council will conduct inspection every year till the first batch completes the programme. Permission will be given year by year till the first batch completes.” 17. The State Act was enacted to provide for registration and holding of examination of nurses etc. It provides for constitution of Punjab Nurses Registration Council comprising of Director of Health Services and other members. Section 14 CWP No.17254 of 2007 17 provides for registration of Nurses etc. Section 17 provides for prohibiting unregistered persons from practising. Section 18 provides for bye-laws, inter-alia, for laying down course of training, providing for recognition of institutions competent to give training, to regulate the issue of certificates and other matters. 18. Entry 66 of List I and Entry 25 of List III of the Seventh Schedule to the Constitution of India, are as under:- “66. Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institution.” “25. Education, including technical education medical education and universities, subject to the provisions of Entries 63, 64, 65 and 66 of List I; vocational and technical training of labour.” 19. We may also briefly refer to the judgments of the Hon'ble Supreme Court dealing with the issue of inter-relationship between a Central Authority constituted under a Central Act vis-a- vis role of the State Government and the role of the University, dealing with technical and higher education. In Adhiyaman (supra), the Hon'ble Supreme Court considered the question whether after coming into force of All India Council for Technical Education Act, 1987, the State Government had the power to grant or withdraw permission to start CWP No.17254 of 2007 18 a technical institution. Therein, the State Government had permitted private management to start Engineering Colleges and the University granted temporary affiliation. Thereafter, permission and affiliation were sought to be withdrawn. It was held by the High Court that under the Central Act, the exclusive power to recognise any technical institution was with the All India Council for Technical Education. If the State Government or the University were allowed to recognise a technical institution, it could follow different yardsticks. Upholding the said decision, the Hon'ble Supreme Court held that the Central council had the jurisdiction to lay down the norms and to co-ordinate the standards of education. The discussion was summed up in para 41 as under:- “41. 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 forge 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 CWP No.17254 of 2007 19 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 Centre 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 Centre under Entry 25 of the Concurrent List, will have to be determined by the examination of the two