JUDGMENT 1. 1. There is delay in filling the intra-court appeals. 2. For the reasons stated in the applications under Section 5 of the Limitation Act duly supported by affidavits, delay is condoned. Accordingly, Civil Misc. applications are disposed of. 3. Defects are waived. 4. The intra-court appeals have been preferred by State of Rajasthan as well as Rajasthan Nursing Council (hereinafter referred to as 'RNC') questioning sustainability of the common order dated 22.11.2011 passed by Single Bench holding that for starting General Nursing & Midwifery Course (hereinafter referred to as 'GNM Course'), permission of State Government is not required, as such, the RNC should not insist the petitioners-institutions to obtain No Objection Certificate (hereinafter referred to as 'NOC') or Essentiality Certificate from the State Government and direction was issued to the RNC to consider the application of petitioners-institutions for additional recognition/affiliation for GNM Course. 5. Facts in short are that the petitioners-institutions are running B.Sc. Nursing Colleges. They have obtained NOC from the State of Rajasthan to running the said Colleges. However, they desired to start GNM & ANM Course, which is of school level, as such, they applied to the Indian Nursing Council (hereinafter referred to as 'the INC') established under the Indian Nursing Council Act, 1947 (hereinafter referred to as 'the Act of 1947'). The INC granted approval to commence GNM Course, however, subject to approval by the RNC. Thereafter, they have also applied for further recognition/affiliation of GNM Course before the RNC, which has been established under the provisions of the Rajasthan Nurses Midwives, Health Visitors and Auxiliary Nurses Midwives Registration Act, 1964 (hereinafter referred to as 'the Act of 1964'). 6. By way of filing the writ applications, petitioners-institutions had submitted before the Single Bench that there is no necessity to obtain the NOC from the State of Rajasthan. It was also prayed that the State of Rajasthan be directed to issue NOC/recognition/affiliation for commencement of GNM and ANM Course. It was also prayed that the RNC be directed to affiliate the Institutions for GNM Course in view of permission granted by the INC on 20.07.2011. It was also stated that for last several years, they are successfully running B.Sc. Course, which is of college level. The petitioners-institutes were desirous to start the GNM Course, which is of school level. It was also prayed that the RNC be directed to affiliate the Institutions for GNM Course in view of permission granted by the INC on 20.07.2011. It was also stated that for last several years, they are successfully running B.Sc. Course, which is of college level. The petitioners-institutes were desirous to start the GNM Course, which is of school level. The application was also submitted before State of Rajasthan, Department of Medical & Health Services, Jaipur for permission to start the GNM Course and issue the NOC for the purpose. The RNC declined recognition/affiliation on the ground that petitioner-institutions have to produce NOC issued by the State of Rajasthan. On the one hand, the petitioner-institutions applied for grant of NOC to State of Rajasthan, however, on the other hand, they have also contended that it was not necessary and the RNC should not insist for it. It was also submitted that once the B.Sc. Course, which is of college level, is being successfully run by the petitioners-institutions, it is not necessary to obtain the NOC from State Government to start the GNM and ANM Course. 7. In the return, Stand of the State of Rajasthan is that the State Government has authority and empowerment to determine basic norms and standards for opening of Nursing Schools in the State of Rajasthan and for determining the question as to whether for new course in the pre-existing college shall be allowed; it is to be considered that the institution has the requisite building, hospital, teaching staff etc., basic infrastructure as per norms/standard laid down by the INC/State Government and on these conditions, the State Government issues the NOC to start a new course. The State Government has also taken a policy decision at the level of a Minister's Meeting that if any institution, without taking an NOC from the State Government, obtains permission from the INC directly for the GNM course, such institution would not be provided students by the State Government until such institution obtains NOC from the State Government and thereafter affiliation from the RNC. Approval granted by the INC for running GNM Course is inoperative until and unless the recognition/affiliation from the RNC is obtained and that has to precede the NOC to be granted by the State Government. 8. Approval granted by the INC for running GNM Course is inoperative until and unless the recognition/affiliation from the RNC is obtained and that has to precede the NOC to be granted by the State Government. 8. Stand of the RNC in the return is that it works and is governed by the Act of 1964, and is a body corporate yet bound by instructions of State of Rajasthan issued from time to time. It is also contended that instructions were issued in 2006-2007 by the Department of Medical, Health and Family Welfare, Government of Rajasthan mentioning that the application for recognition or affiliation of any school seeking commencement of GNM Course would not be accepted up to 31.12.2009, as such, the application pending for affiliation of the colleges seeking to start the GNM Course would not be considered. The aforesaid instructions have continued even in 2011, as such, the application could not have been considered for grant of affiliation. 9. The INC, in the return, has contended that it is governed by the Act of 1947 enacted by the Parliament with reference to Entry 66 List-1, Schedule-VII of the Constitution of India. The Act of 1947 includes the power of giving recognition of Nursing Institutions, which is referred to Section 13(2) of the Act of 1947, as also the power to prescribe the syllabus for various nursing courses including GNM and ANM Courses; all nursing Councils, including the RNC. The RNC follows the syllabus prescribed by the INC; the syllabus also contains guidelines for opening new Nursing Institutions; even though the institutions are ordinarily required to first obtain NOC/Essentiality Certificate from the State Government, guidelines have been subsequently issued by the RNC to the effect that further NOC/Essentiality Certificate is not required for enhancement of seats, upgrading of courses, starting of new course for those institutions which are running a nursing programme. As the petitioners were running the B.Sc. Nursing Course in terms of the prevailing guidelines, when the institutions sought permission to start the additional GNM/ANM Course, permission was granted by the INC, as such, permission from the State Government was not required. 10. In the rejoinder filed by the respondents/petitioners-institutions, it was submitted that even assuming that the State was empowered to impose the precondition of its NOC however, an application for recognition/affiliation could have been considered by the RNC. 11. 10. In the rejoinder filed by the respondents/petitioners-institutions, it was submitted that even assuming that the State was empowered to impose the precondition of its NOC however, an application for recognition/affiliation could have been considered by the RNC. 11. The Single Bench has held that the NOC from the State Government to run additional course of GNM/ANM is not required and the RNC was directed to proceed with the grant of recognition/affiliation and to decide it without insisting for NOC. Hence, the RNC as well as the State of Rajasthan have preferred the intra-court appeals. 12. Mr. S.N. Kumawat, AAG and Ms. Manju Jain, learned counsel appearing on behalf of appellants have submitted that the Single Bench has not posed the correct question for consideration. They are running B.Sc. Course, which is of college level, whereas, GNM/ANM Course is a school level course, as rightly admitted on facts at bar by the learned counsel appearing on behalf of respondents that GNM/ANM Course is of school level not of college level. 13. It is also submitted by learned counsel appearing on behalf of appellants that the INC has framed the regulations called "Regulation for Setting up of A College of Nursing" in exercise of power conferred by Section 16 of the INC Act, 1947, which have been published in the Gazette of India dated 8.10.2007. Regulation No. 1 clearly provides that any organisation who wishes to open a School/College of Nursing should obtain the NGC/Essentiality Certificate from the State Government. Thus, it is clear that No Objection Certificate/Essentiality certificate from the State Government is required to be obtained for opening School/College of Nursing. Even as per the regulations under Section 16 of Act of 1947, it is not additional course for the nursing college, as such, the guidelines are not applicable. Even otherwise guidelines cannot supersede the statutory regulations, which have been framed in 2007. Thus, the RNC was right in insisting for obtaining the NOC from the State Government before processing the application for the purpose of recognition/affiliation to start GNM/ANM Course under the Act of 1964. Thus, the decision rendered by the Single Bench is contrary to law and same be set aside. 14. Mr. R.D. Rastogi, Mr. Jai Raj Tantia and Ms. Anuradha Upadhayay, learned counsel appearing on behalf of respondents have submitted that once B.Sc. Thus, the decision rendered by the Single Bench is contrary to law and same be set aside. 14. Mr. R.D. Rastogi, Mr. Jai Raj Tantia and Ms. Anuradha Upadhayay, learned counsel appearing on behalf of respondents have submitted that once B.Sc. Nursing Course, which is of college level, is being run by the petitioners-institutions, there is no further necessity to obtain the NOC from the State Government as GNM/ANM Course amounts to additional course only. Thus, no further NOC was required from the State Government as they are running nursing colleges for the last several years. Thus, the decision rendered by the Single Bench is appropriate. 15. It has been held by the Single Bench that the RNC cannot impose the condition of obtaining the NOC from the State Government as that would tantamount to abdication of its statutory obligation of considering applications for recognition/affiliation filed from time to time and would also be contrary to the statutory scheme of the Act of 1964. Within the purview of the Act of 1964, the State Government is not required to grant NOC; it is not intended by Sections 24, 28, 32 & 33 of the Act of 1964. The INC is supreme in the matter of nursing education in India. No limitation can be put on the Act of 1947 by any State law. The RNC has the statutory right and corresponding duty to affiliate the institution/college approved by the INC for the purpose of conducting examination on the satisfaction of its own requirements under the Act of 1947. Under the Act of 1964, there is no provision to obtain the NOC from the State Government. There is no fundamental right to establish an educational institution and by extension to run an additional course; neither executive instructions nor policy can par-take the character of law. Thus, stand of the State Government/RNC is unsustainable. It has also been observed that it is evident from the guidelines issued by the INC that for starting additional courses including GNM/ANM course, the institutes already running nursing courses would be exempted from the said requirement of obtaining prior NOC/Essentiality certificate from the State Government. 16. The main question for consideration is whether the NOC from the State Government is required to start school of GNM/ANM Nursing. The INC, RNC as well as State of Rajasthan come into play at the same time. 16. The main question for consideration is whether the NOC from the State Government is required to start school of GNM/ANM Nursing. The INC, RNC as well as State of Rajasthan come into play at the same time. Section 16 of INC Act, 1947 deals with the power to make regulations. In exercise of power conferred by Section 16 of the INC Act, 1947, the Central Body INC has framed the statutory regulations called "Regulation for Setting up of a College of Nursing". These Regulations became effective from 24.04.2004; they were published in the Gazette of India Part-III Section 4 on 08.10.2004. Thus, the said regulations have statutory force. Regulation No. 1 of the said regulation provides that any organisation 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 Nursing, should obtain the No Objection/Essentiality certificate from the State Government. Regulation No. 2 provides that the Indian Nursing Council on receipt of the proposal from the Institution to start Nursing 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. Regulation 3 provides that after receipt of the permission to start the nursing programme from the Indian Nursing Council, the institution shall obtain the approval from the State Nursing Council and University. Regulation No. 4 provides that Institution will admit the students only after taking approval of State Nursing Council and University. Note appended to the Regulation provides that if any School of Nursing wants to upgrade to College of Nursing, Essentiality Certificate for B.Sc. Nursing Course is not essential, as they already possess essentiality certificate for School of Nursing. It is not vice versa. The Regulation No. 1 to 4 and note appended to the Regulation framed by the INC are quoted below:- "(1) Any organisation 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 Nursing, should obtain the No Objection/Essentiality certificate from the State Government. (2) The Indian Nursing Council on receipt of the proposal from the Institution to start Nursing 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. (3) After receipt of the permission to start the nursing programme from the Indian Nursing Council, the institution shall obtain the approval from the State Nursing Council and University. (4) Institution will admit the students only after taking approval of State Nursing Council and University. (5)............................. Note.-- If any School of Nursing wants to upgrade to College of Nursing, Essentiality Certificate for B.Sc. Nursing Course is not essential, as they already possess essentiality certificate for School of Nursing. However, the private institutions has to produce document with regard to resolution of the management for upgrading the School of Nursing into College of Nursing and INC norms will be followed. Subject to the condition that School of Nursing is found suitable by Indian Nursing Council. 17. 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. 18. 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. 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. 19. 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 organisation 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. * After the receipt of the permission to start ANM training program from Indian Nursing Council, the institution shall obtain the approval from the State Nursing Council and Examination Board. * After the receipt of the permission to start ANM training program from Indian Nursing Council, the institution shall obtain the approval from the State Nursing Council and Examination Board. GNM Guidelines to start G.N.M. Course * Any organisation under the Central Government, State Government, Local body or a Private or Public Trust, Mission, Voluntary registered under Society Registration Act or a Company registered under company's Act wishes to open a School or Nursing should obtain the NO Objection/Essentiality certificate from the State Government. * If any Nursing Programme is recognised by Indian Nursing Council, then the institution will be exempted from NOC/Essentiality Certificate for G.N.M. from the State Government. * The Indian Nursing Council on receipt of the proposal from the Institution to start nursing programme, will undertake the first inspection to assess suitability with regard to physical infrastructure, clinical facility and teaching faculty in order to give permission to start the programme. * After the receipt of the permission to start the nursing programme from Indian Nursing Council, the institution shall obtain the approval from the State Nursing Council and Examination Board." 20. The date, on which these guidelines have been laid down, could not be stated by the counsel appearing on behalf of either parties. Guidelines with respect to ANM/GNM Courses also provide that Essentiality Certificate/NOC has to be obtained for starting the ANM Training Programme from the State Government. Similar is the provision with respect to GNM Course. Learned counsel are relying upon the provision in guide liens quoted above to the effect that if any Nursing Programme is recognised by INC, then the institution will be exempted from obtaining NOC/Essentiality Certificate for ANM/GNM from the State Government. The INC has issued communication dated 20.7.2011 after inspection of institution, same is quoted below in extenso: "Fax No. 23236140 Phone Nos. 23235570, 23235619 Indian Nursing Council Combined Councils Building Kotla Road, Temple Lane New Delhi--110002 File No. 02/JUL/2011 Dated : 20/7/2011 To, The Principal, St. Thomas Institute of Nursing IIRM, Rural Campus, Rampura Phagi, Dist. Jaipur-303005, Rajasthan Subject: Status of St. Thomas Institute of Nursing, IIRM, Rural Campus, Rampura, Phagi, Dist. Jaipur-303005, Rajasthan-Reg. Sir/Madam, The Indian Nursing Council conducted inspection of your institution for GNM programme on 16-17.06.2011. The Institution is permitted/Suitable for GNM programme with an intake of 50 (fifty) seats subject to the approval of State Nursing Council and University/Board for 2011-12 academic year. Thomas Institute of Nursing, IIRM, Rural Campus, Rampura, Phagi, Dist. Jaipur-303005, Rajasthan-Reg. Sir/Madam, The Indian Nursing Council conducted inspection of your institution for GNM programme on 16-17.06.2011. The Institution is permitted/Suitable for GNM programme with an intake of 50 (fifty) seats subject to the approval of State Nursing Council and University/Board for 2011-12 academic year. Yours faithfully, Sd/- SECRETARY" 21. Firstly, the guideline that Nursing Programme is recognised by the INC then the institution will be exempted from NOC/Essentiality Certificate from the State Government is contrary to regulations which have to prevail. It is a case of opening of the school itself. There is no ANM Training School and School of nursing, running as such, the permission from State Government is imperative even under the guidelines recognition of college is different from recognition of school level programme. Section 10 of the INC Act deals with the recognition of qualifications. Section 11 deals with the effect of recognition. Recognition of course and permission to start school are different aspects. Once, recognition of qualification is obtained, that shall sufficient to get enrolled in any State register. In the instant case, permission has been granted to run the ANM Training School/School of Nursing which further subject to regulations No. 1 of the Regulation of 2007 which have the statutory force. NOC/Essentiality Certificate from the State Government is imperative. The guidelines cannot supersede the provision made in the regulations which have the statutory force. Regulation No. 1 of the Regulation of 2007 makes it clear that institution is required to produce NOC/Essentially certificate from the State Government, only then the INC can grant permission under the Regulation 2. Guide liens cannot be repugnant to the statutory regulations; Regulations of 2007 have to prevail. Though, the guidelines cannot be interpreted so as to supersede the Regulations, guidelines are subordinate to regulation and for internal functioning of INC and cannot be said to be having statutory force. If guidelines are followed, anomalous result would arise and that is not so contemplated guidelines also. When we deal with the question of permission as envisaged in Regulation No. 2, which has been granted on 20.7.2012, Regulation Nos. 1 and 2 cannot be ignored. Thus, the NOC/Essentiality certificate is necessary for opening ANM/GNM Training School/School of Nursing. Merely running of Nursing College of B.Sc. When we deal with the question of permission as envisaged in Regulation No. 2, which has been granted on 20.7.2012, Regulation Nos. 1 and 2 cannot be ignored. Thus, the 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. Learned counsel appearing on behalf of appellants have relied upon the decision of the Apex Court rendered in Government of A.P. & Anr. v. J.B. Educational Society & Anr., (2005) (3) SCC 212. The Apex Court considered the power of AICTE and Section 20 of AP Act and observed that State authorities alone can determine about educational facilities and needs of localities. Para 13 & 14 of the said decision are reproduced as under: "13. It is in this background that the provisions contained in the two legislative enactments have to be scrutinised. The provisions of the AICTE Act are intended to improve the technical education and the various authorities under the Act have been given exclusive responsibility to coordinate and determine the standards of higher education. It is a general power given to evaluate, harmonise and secure proper relationship to any project of national importance. Such a coordinate action in higher education with proper standard is of paramount importance to national progress. Section 20 of the AP Act does not in any way encroach upon the powers of the authorities under the Central Act. Section 20 says that the competent authority shall, from time to time, conduct a survey to identify the educational needs of the locality under its jurisdiction notified through the local newspapers calling for applications from the educational agencies. Section 20(3)(a)(i) says that before permission is granted, the authority concerned must be satisfied that there is need for providing educational facilities to the people in the locality. The State authorities alone can decide about the educational facilities and needs of the locality. If there are more colleges in a particular area, the State would not be justified in granting permission to one more college in that locality. The State authorities alone can decide about the educational facilities and needs of the locality. If there are more colleges in a particular area, the State would not be justified in granting permission to one more college in that locality. Entry 25 of the Concurrent List gives power to the State Legislature to make laws regarding education, including technical education. Of course, this is subject to the provisions of Entry 63, 64, 65 and 66 of List I. Entry 66 of List I to which the legislative source is traced for the AICTE Act deals with the general power of the Parliament for coordination, determination of standards in institutions for higher education or research and scientific and technical educational institutions and Entry 65 deals with the union agencies and institutions for professional, vocational and technical training, including the training of police officers, etc. The State has certainly the legislative competence to pass the legislation in respect of education including technical education and Section 20 of the Act is intended for general welfare of the citizens of the State and also in discharge of the constitutional duty enumerated under Article 41 of the Constitution. 14. The general survey in various fields of technical education contemplated under Section 10(1)(a) of the AICTE Act is not pertaining to the educational needs of any particular area in a State. It is a general supervisory survey to be conducted by the AICTE Council, for example, if any IIT is to be established in a particular region, a general survey could be conducted and the Council can very much conduct a survey regarding the location of the institution and collect data of all related matters. But as regards whether a particular educational institution is to be established in a particular area in a State, the State alone would be competent to say as to where that institution should be established. Section 20 of the AP Act and Section 10 of the Central Act operate in different fields and we do not see any repugnancy between the two provisions." 23. Section 20 of the AP Act and Section 10 of the Central Act operate in different fields and we do not see any repugnancy between the two provisions." 23. 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. 24. Learned counsel appearing on behalf of petitioner-institutions have submitted that they may be permitted to apply to the State Government for grant of NOC/Essentiality Certificate. They are permitted to do so. In case, applications are filed for grant of NOC/Essentiality certificate, the same shall be considered within a period of one month from the date of filing of the application. Thereafter, the RNC has to take a decision in accordance with law. 25. Resultantly, the intra-court appeals are allowed. Impugned order is set aside. Stay Applications are disposed of. Interim applications for exemption are also disposed of.Appeals Allowed-Impugned Order Set Aside. *******