V.GOPALA GOWDA, CJ & B.N.MAHAPATRA, J. W.A. NO.41 OF 2010 (Decided on 13.09.2011) DIRECTOR OF MEDICAL EDUCATION & TRAINING ORISSA … ….Appellant. .Vrs. REGIONAL COLLEGE OF HEALTH SCIENCE (ANM/HW(F),TRAINING CENTRE & ANR. ………Respondents. For Appellant - M/s. R.C.Mohanty, K.C.Swain For Respondents - Mr. J.K.Rath, Sr.Advocate M/s .M.K.Khuntia, A.K.Apath, G.R.Sethy, B.K.Pattnaik, & P.K.Rout (for Res. No.1) M/s. Sanjeeb K. Dwibedi & S.K.Dwibedi (for Res.No.2) M/s. Sanjit Mohanty, Sr.Advocate (for the Intervenor-students) Ms. Meera Ghosh (for Intervenor-students) V. GOPALA GOWDA, C.J. The present writ appeal has been filed by the Director of Medical Education & Training, authorized to represent the Commissioner-cum- Secretary, Health & Family Welfare Department, questioning the correctness of the impugned order dated 29.01.2010 passed by the learned Single Judge in W.P.(C) No.15352 of 2008 urging various facts and legal contentions. 2. The brief facts of the case are stated for the purpose of appreciating the rival and legal contentions of the parties. The appellant is the Chairperson of Orissa Nurses and Midwives Examination Board, which is established for the purpose of teaching and conducting examination of certificate course to impart Nursing Training and proficiency in General Nursing and Midwifery. The Board is empowered to grant certificate to the eligible candidates after conducting examination from time to time. The Board is also empowered, subject to sanction of the State Government, to recognize hospital for the purpose of training and sending candidates for examination for getting Certificate in General Nursing and Midwifery. The State Government approved the Board vide Government Order No.8245 dated 13.08.1958 and subsequently the State Government has formulated the Sate Task Force (for short, ‘STF’) and realignment of Nursing cadre with the Department of Health & Family Welfare through a resolution and that resolution has been notified in the Orissa Gazette on 22nd September, 2009. 3. The Orissa Nurses and Midwives Registration Act, 1938 was given the assent of the Government and was published in the Orissa Gazette dated 8th July, 1938. The said Act provides for the registration and better training of Nurses, Health Visitors, Midwives and Dais in Orissa and to secure their better training. As per the said Act, initially the Orissa Medical College Hospital & Baptist Mission Hospital, Berhampur were recognized the institutions for training in General Nursing and Midwifery. The Mission Hospital, G. Udaygiri, Ganjam was a recognized institution for training in the subject of general nursing. The following institutions were the recognized institutions for imparting training in the subject specified below: (i) Sriram Chandra Bhanja Medical College and Hospital, Cuttack = General Nursing & Midwifery, (ii) Christian Hospital for Women and General Nursing & Children, Berhampur = Midwifery (iii) Mission Hospital, G. Udaygiri = General Nursing (iv) Government Headquarters Hospital, Berhampur General = Nursing & Midwifery, and (v) Government Headquarters Hospital, Baripada = General Nursing 4. The subject of Health and Education is within the concurrent list and the Acts and Rules framed by the Central Government operate in their respective domains and there is no conflict between any law enacted by the State Government and any particular law enacted by the Central Government. Sub-section (2) of Section 10 of the Indian Nursing Council Act, 1947 (for short, ‘INC Act, 1947’) confers power to recognize qualification in these fields of General Nursing, Midwifery, health visitors. Sub-section (2) of Section 10 of the said Act, provides that “any authority within the State, 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, Health Visitors, Public Health Nursing, not included in the schedule, may apply to the Council to have such qualifications recognized”. Accordingly, the Indian Nursing Council has been vested with the power to recognize or approve any particular institution or college for awarding qualification recognized by the Council. 5. The Indian Nursing Council (for short, ‘INC’) has been issuing regulations with regard to the minimum clinical and infrastructural facilities required to open a school/college of Nursing keeping in mind the provisions of Section 16 of the INC Act, 1947. These minimum required facilities are insisted upon every Nursing Institution in order to maintain uniform standard of Nursing Education all over the country. The maintenance of these minimum clinical and infrastructural facilities is very much necessary for undergoing the syllabus prescribed by the INC in order to obtain a recognized qualification. It is necessary that all the Nursing Institutions empowered to award qualifications in Nursing have the prescribed minimum requirements stipulated by the INC. 6. Any institution, or a registered Society, or a Private or Public Trust, registered under the Societies Registration Act or a company registered under the Companies Act, wishes to open an ANM Training School should obtain No Objection/Essentiality Certificate from the State Government. The INC on receipt of such proposal from the 2 institution to start ANM Training Programme will undertake the first inspection to assess the suitability with regard to the physical infrastructure, clinical facility and teaching facility in order to give permission to start the programme. The institution will have to admit the students only after taking approval from the State Nursing Council and Examination Board. The INC will conduct inspection every year till the first batch completes the programme. Permission will be given year by year till the first batch completes the course. 7. Respondent No.1-Institution filed the writ petition seeking for issuance of a direction to the appellant to conduct the final Board Examination of the students of its institution for the academic year 2006-2007 as the Respondent No.1-Instition was opened since 2004 and had also filed a Misc. Case for giving permission to the students of the institution to fill up their forms for appearing at the ANM/HW(F) Examination to be held either in the month of December, 2008 or in the month of January, 2009. The learned Single Judge, vide order dated 19.11.2008, directed the present appellant to allow the students of Respondent No.1-Institution to submit their applications and conduct examinations. The students have appeared at the examination and their results have been published pursuant to direction issued in the writ petition. The impugned order is challenged raising the following questions of law: (i) Whether it is permissible for this Court to issue direction to allow the students to fill up the forms of the institution which does not have the required permission to start the institution as per the statutory regulation? (ii) Whether schools can be opened without complying with the statutory regulations which are mandatory in nature? (iii) Can any institution without having any of the necessary requirements under the statutory law for its establishment, have any right to admit students to a course of study prior to approval is obtained from the authority? (iv) Whether the Hon’ble Court can direct the appellant ‘Board’ to act as per direction of this Court, which is in direct contravention of the binding law? (v) Whether, while exercising jurisdiction under Article 226 of the Constitution of India, the Hon’ble Court can pass such orders which are in conflict, contrary to the statutory provisions and principles of law in that regard laid down by the Hon’ble Supreme Court ?. 8. Mr. Mohanty, learned Counsel appearing for the appellant urges the following grounds: The impugned order dated 29.01.2010 passed by the learned Single Judge is contrary to the statutory provisions of INC Act and Regulations as the Respondent No.1 has not obtained recognition to establish its school as required under the provisions of the Act and Regulation. The learned Single Judge has failed to appreciate the factual and legal position in so far as not obtaining any permission/approval from the competent authority by the first respondent as required under the statutory and mandatory rules which are applicable to the institutions under the provisions of the INC Act. The institution has not obtained the recognition/permission from the competent authority 3 under the Act and Regulations, therefore, admitting the students for the Certificate Training Course of Nursing and Midwifery is illegal and the same is not permissible in law. This aspect of the matter has not been taken note of by the learned Single Judge while passing the impugned order. 9. In support of the above legal contention, Mr. Mohanty, learned counsel has relied upon the decisions of the Hon’ble Supreme Court in the case of Nageshwaramma vs. State of Andhra Pradesh and another, AIR 1986 SC 1188, wherein the apex Court while examining the power under Articles 32 and 226 of the Constitution has interpreted Sections 20 and 21 of the Andhra Pradesh Education Act and held that establishment of the institution without permission is unauthorized and the students trained in such institutes cannot be permitted to appear in the examination. The Court cannot issue direction under Article 32. The direction issued in the Misc. Case is totally impermissible in law and the same is contrary to the aforesaid decision. In this regard, he has also relied upon a decision of the Hon’ble Supreme Court in the case of State of Maharashtra vs. Vikas Sahebrao, Roundale, reported in AIR 1992 SC 1926. He has also placed strong reliance on another decision of the Hon’ble Supreme Court in the case of St. John’s Teacher Training Institute (for women), Madurai vs. State of Tamilnadu and others, reported in AIR 1994 SC 43 in support of the contention that the Court should not embarrass the academic authorities by itself taking over their functions. Further reliance is placed upon another decision of the Hon’ble Supreme Court in the case of Minor Sunil Oraon Tr. Guardian & Ors. vs. C.B.S.E. & Ors, reported in AIR 2007 SC 458, wherein the students admitted in the institution having no affiliation from C.B.S.E., filed writ petition with a prayer to allow the students to appear in the examination conducted by the C.B.S.E. and to publish their result. Though initially the Hon’ble Court permitted the students to appear in the examination pursuant to the interim order, subsequently the writ petition was dismissed on the ground that the school was not affiliated to C.B.S.E. The said order was challenged in the appeal. The Hon’ble apex Court deprecated the practice of Educational Institution admitting students without the requisite recognition and affiliation. 10. In view of the aforesaid decision of the Hon’ble Supreme Court, the learned counsel for the appellant submits that the admission of students without prior permission or recognition by the Board as required under the INC Act and the interim order passed permitting the students to appear for the examination and direction to declare the result is not legal and valid, therefore, the impugned order is liable to be quashed. 11. Mr. Rath, learned Senior Advocate appearing on behalf of the respondent No.1- Institution sought to justify the impugned order passed by the learned Single Judge contending that the students have completed the course for the academic session 2006- 2007. Learned counsel placed strong reliance upon the letters no. 321 dated 30th August, 2010 and No. 323 dated 30th August, 2010 issued by the Secretary, Orissa Nurses & Midwives Examination Board to the Assistant PIO, Directorate of Health Services, Orissa on the application of Basanta Kumar Panda under R.T.I. Act, 2005. The information furnished in paragraph 4 of the list and letter at paragraphs 1 and 2 in second letter reads thus: Para-4 of letter No.321 dated 30.08.2010. 4 “The ANM students of the Government ANM Training Centres appear the examination for the Session 2007-2008 as per the syllabus and regulation of 1977 of INC.” Paras-1 and 2 of letter No.323 dated 30.08.2010. “1. Prior to 2006 there was neither any rule nor regulation for opening of ANM School under private sector as per INC Syllabus. Some Private ANM Training Schools opened during the period from 2001-2006 have been allowed to present their students to appear the examination on the basis of the Government instruction in accordance with 1977 Regulation of Indian Nursing Council, New Delhi. 2. Prior to 2006 there was no necessary to obtain NOC from State Government and approval from INC for opening of ANM School under Private Sector, when the Government of Orissa in Health and FW Department issued NOC to the Private Sector during the year 2006-2007 as per INC Regulation which was implemented in the State during the year 2008.” 12. Therefore, it is contended by the learned Senior Counsel on behalf of first respondent that the Orissa Nurses and Midwifery Board has admitted that prior to 2006 there was no rule or regulation for opening ANM School under private sector as per INC Syllabus. Some private training schools were opened during the period from 2001 to 2006 and their students have been allowed to appear at the examination on the basis of the Government instruction in accordance with 1977 Regulation of Indian Nursing Council, New Delhi. Further it is contended that prior to 2006 there was no necessity to obtain NOC from the State Government and approval from INC for opening ANM School under private sector. Therefore, it is submitted that the impugned order passed by the learned Single Judge, as an interim measure, permitting the students to file application to appear at the examination and subsequently giving direction to declare their result is legal and valid. Therefore, the grounds and the legal contentions urged in this appeal are misplaced and they are not applicable to the facts and circumstances of the case. Hence, learned counsel for the Respondents requested to dismiss the writ appeal. 13. Two miscellaneous applications were filed by some of the students at the time of hearing of the writ appeal. Mr. S. Mohanty, learned Senior Advocate has appeared for one of the students and placed the Misc. Case No. 715 of 2011. He submitted that if this Court interprets Section 10 of the INC Act to mean that for the purpose of establishing the institution by a private or public trust or by a society, the permission and recognition of the State Government in consultation with INC, is required, the intervening students cannot have right to seek appropriate direction as prayed in the writ petition having regard to the undisputed fact of the case that the first respondent has not obtained permission and recognition from the State Government in consultation with INC. If this Court exercises its equity jurisdiction keeping in view the undisputed fact that the course of the students is completed pursuant to the interim directions issued in the writ petition and the students of the first respondent-institute have been permitted to take examination and results have been declared, the only thing is that the Board has to make an endorsement in the certificates to facilitate the students to practise or to get 5 employment as Nurses, Midwifery, ANM & Health Visitors in the hospitals or Nursing Homes. The same submission is also made by Ms. Meera Ghose, learned counsel appearing for other batch of the students in misc. case no.716 of 2011. 14. With reference to the above rival legal contentions, this Court is required to examine the questions raised by the appellant i.e. Question nos. (i), (ii) & (iii). For this purpose, it would be just and necessary for this Court to extract the statutory provisions of sub-sections (1)m (2) & (3) of Section 10 of the INC Act. “10. Recognition of qualifications. (1) For the purposes of this Act, the qualifications included in [Part 1 of] the Schedule shall be recognized qualifications, and the qualifications included in Part II of the Schedule shall be recognized higher qualifications. (2) Any authority within the [States} which, being recognized by the [State] Government [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 recognized, and the Council may declare that such qualification, or such qualification only when granted after a specified date, shall be a recognized qualification for the purposes of this Act. (3) The Council may enter into negotiations with any authority in any territory of India to which this Act does not extend or foreign country which by the law of such territory or country is entrusted with the maintenance of a register of nurses, midwives or health visitors, for the settling of a scheme of reciprocity for the recognition of qualifications, and in pursuance of any such scheme the Council may declare that a qualification granted by any authority in any such territory or country, or such qualification only when granted after a specified date, shall be a recognized qualification for the purpose of this Act: Provided that no declaration shall be made under this sub-section in respect of any qualification unless by the law and practice of the foreign country in which the qualification is granted persons domiciled or originating in India and holding qualifications recognized under this Act are permitted to enter and practice the nursing profession in that country. Provided further that- (i) any reciprocal arrangements subsisting at the date of the commencement of this Act between a State Council and any authority outside India for the recognition of qualifications shall, unless t he Council decides otherwise, continue in force, and (ii) any qualification granted by an authority in a territory of India to which this Act did not extend at the date of its commencement, and recognized on the said date by the State Council of a State to which this Act then extended, shall 6 continue to be a recognized qualification for the purpose of registration in that State”. 15. On a careful reading of sub-sections (1) and (2) of Section 10 of the Act, it emerges that the Act has specified the qualifications issued by the authorities mentioned in Part I and part II of the Schedule to the Act as the recognized qualifications. It further emerges that any Institution within the State being recognized by the State in consultation with the State Council to grant any qualification but not included in the Schedule to grant the qualification in general Nursing, Midwifery, ANM, Health Visitor and public health nursing is required to have such qualification recognized by the INC so that the certificates, diplomas or degrees in the aforesaid course granted by such institution will be regarded as recognized qualification. The qualification granted by the first respondent having not been recognized by the State in consultation with INC is not to be treated as valid. Section 11 speaks about effect of recognition, which reads thus: “11. Effect of recognition. (1) Notwithstanding anything contained in any other law,- (a) any recognized qualification shall be a sufficient qualification for enrolment in any [State] register (b) no person shall, after the date of the commencement of this Act, be entitled to be enrolled in any [State] register as a nurse, midwife, [auxiliary nurse-midwife,] health visitor, or public health nurse unless he or she holds a recognized qualification: Provided that any person already enrolled in any State register before the said date may continue to be a so enrolled notwithstanding that he or she may not hold a recognized qualification. (c) xx xx xx” 16. The aforesaid provision makes it very clear that the recognized qualification enables a person to get a certificate of registration. Section 12 speaks of the power to require information as to courses of studies and training and examination. It is relevant to extract Section 12 hereunder: “12. Power to require information as to courses of study and training and examinations. Every authority in any [State] which grants a recognized qualification or a recognized higher qualification shall furnish such information as the Council may, from time to time, require as to the courses of study and training and examinations to be undergone in order to obtain such qualification, as to the ages at which such courses of study and examinations are required to be undergone and such qualifications conferred, and generally as to the requisites for obtaining such qualification”. Section 13 speaks of the “Inspections” by the Executive Committee, which reads thus: 7 “13. Inspections. (1) The Executive Committee may appoint such number of inspectors whether from among members of the Council or otherwise as it deems necessary to inspect any institution recognized as a training institution, and to attend examinations held for the purpose of granting any recognized qualification or recognized higher qualification. (2) Inspectors appointed under this section shall report to the Executive Committee on the suitability of the institution for the purposes of training and on the adequacy of the training therein, or as the case may be, on the sufficiency of the examinations.” Section 14 speaks about the withdrawal of recognition, which reads thus: “(1) When, upon report by the Executive Committee, it appears to the Council- (a) that the courses of study and training and the examinations to be gone through in order to obtain a recognized qualification from any authority in any State or the conditions for admission to such courses or the standards of proficiency required from the candidate at such examinations are not in conformity with the regulations made under this Act or fall short of the standards required thereby or xx xx xx” 17. After going through the above said provisions of the Act, it is abundantly clear that any institution, which is required to be established either in a public or private sector or by a society as per the Societies Registration Act, must necessarily obtain recognition from the State Government as required under the provisions of the INC Act to facilitate the Board for the purpose of conducting examinations as per the provided Syllabus particularly the course of training either for Nursing or Midwifery. The statutory provisions referred to supra mandate the institution, which is required to be established, to seek recognition and get recognition. If the recognition is not obtained by the first respondent and the Authorities make the students to appear in the examinations that would be conducted by the Board and directing the Board to issue the certificate to them would not be legal. It is an undisputed fact as stated by the learned Senior Advocate Mr. Rath that recognition of the first respondent has not been obtained from the State Government in consultation with INC for admitting the students for the academic course of 2006-2007, as the same is not required in law. The said legal contention urged by the learned counsel on behalf of the first respondent cannot be accepted by this Court in view of the aforesaid statutory provisions of the Act. The contentions urged by the learned Senior Advocate Mr. Rath that neither recognition from the State Government is required nor the provisions of the Act and Regulations are applicable to the first respondent cannot be accepted at all, as the Act, 1947 is enacted to regulate and control the courses in the Nursing, Midwifery or the Heath Visitors and to establish a uniform standard of training for Nurses, Midwifery and Health Visitors and for issuance of certificate to them after giving necessary training in the courses approved by the competent Authority under the provisions of the Act by the recognized institutions which would provide all facilities including the teaching faculties to teach them and train them 8 to make them good Nurses, Midwifery and Health Visitors to render medical services to the needy people of the country. 18. Having regard to the laudable object of the Act, 1947 that the institutions are being established for the purpose of imparting instruction and issuing certificate of the approved qualifications to the successful candidates in different courses as per the syllabus prescribed under the Act by the Board for the purpose of getting good education in the recognized course to come out from the institutions to render health services to the needy people, the argument advanced on behalf of the first respondent that recognition from the State Government is not required to establish such an