JUDGMENT Dr. D.P.CHOUDHURY, J. - This writ application has been filed challenging the illegal action of the opposite party for not extending permanent recognition/affiliation and approval to petitioner-institution w.e.f. 2006-07, for not allowing the students of the petitioner-institution to appear in the Board Examination for Auxiliary Nurses and Midwives (in short ANM) with further prayer for declaring the admission and examination of students of O.Ps. 6 to 21 into ANM courses as null and void and for declaring the certificates and registration of pass out ANM students of O.Ps. 6 to 21 consequently as null and void. Facts of the case: 2. The unsworn details of case of the petitioner is that the petitioner-institution made application on 18.9.2006 to the Government of Odisha in Health & Family Welfare Department to grant NOC/permission/recognition to institution for imparting training in recognized qualification i.e. ANM in the district of Kalahandi, Government of Odisha in Health & Family Welfare Department has also granted NOC/permission/recognition to petitioner-institution for running such course vide Annexure-3l. It is also averred by the petitioner that the petitioner-institution has made number of applications before the Indian Nursing Council (INC) to make inspection of the institution under Section 13 (2) of the Indian Nursing Council Act, 1947 (for short ‘the Act’) so that the petitioner could commence said course inasmuch as it is INC who has got domain to issue necessary approval for running said ANM course. But no action was taken by the INC to ,make inspection. 3.While the matter stood thus, on 21.2.2007, 23.11.2007 and 31.3.2009 the authority was pleased to allow ANM students to undertake clinical training in Government Community Health Centre/Public Health Centre vide Annexure-4. But no order was passed to make inspection of the institution by INC. On 19.12.2007 Government of Odisha in Health & Family Welfare Department constituted an inspection committee to inspect ANM Centre, the said Committee inspected petitioner-institution on 16.1.2008 and observed that the petitioner-institution satisfied all conditions as per regulations/norms/guidelines of the INC regarding own building infrastructure teaching faculty and qualification of teachers and recommended to commence such course. On 6.6.2008 the petitioner-institution made application for renewal of the NOC/Essential Certificate/Permission/Recognition for the session 2007-08, 2008-09 vide Annexure-6. On 12.6.2008 the State Government requested the Secretary, Odisha Nurses and Midwives (ONM) Examination Board, Bhubaneswar to submit inspection report of petitioner-institution. On 6.6.2008 the petitioner-institution made application for renewal of the NOC/Essential Certificate/Permission/Recognition for the session 2007-08, 2008-09 vide Annexure-6. On 12.6.2008 the State Government requested the Secretary, Odisha Nurses and Midwives (ONM) Examination Board, Bhubaneswar to submit inspection report of petitioner-institution. Accordingly inspection was made and the Odisha Nurses and Midwives (ONM) Examination Board, Bhubaneswar submitted report. After necessary mandatory deposit, ONM Examination Board granted provisional affiliation to the petitioner-institution vide Annexure-9. Accordingly the petitioner-institution took students for admission into ANM Training Course for the session 2007-08 onwards and the students have completed their course. But O.P. No.3 did not extend permission to appear in the Board Examination in such course and the said file is lying w.e.f. the session 2007-08. In the meantime the filling up of forms for the aforesaid examination has been already completed by O.P. No.3 and it is further averred that the students of the Govt. and private institutions have already filled up their form to appear in the Board Examination for the sessions 2009-10 but at the same time the students of the petitioner-institution have been denied admission although have completed the course for the session 2007-08 onwards. 4.It is further case of the petitioner that O.Ps. 1 to 5 allowed students of Government ANM Training Centre of O.Ps. 6 to 21 for running institution with students beyond their intake capacity and in clear violation of the guidelines of the Central Government and INC. It is further alleged, inter alia, that INC has only approved 30 seats to some centres, 20 seats to some centres and 15 seats to come centres for the sessions 2011-12. But such ANM centres have engaged more students than their intake capacity, ultimately violating the norms of INC. Thus the students who have completed their course and taken admission into aforesaid courses under Government institution, have been declared to have passed the said courses. Thus the conduct of the State Government as well as other opposite parties are quite unjust, illegal and also discriminatory to the students of the petitioner-institution by not allowing them to appear in the examination. Thus the conduct of the State Government as well as other opposite parties are quite unjust, illegal and also discriminatory to the students of the petitioner-institution by not allowing them to appear in the examination. It is very interestingly mentioned in the writ petition that strangely three ANM training centres of Daspalla, Dhenkanal and Bhawanipatna having no existence, have been permitted by opposite parties to submit fees and application form for the second year students of those institutions to appear in the Board Examination .This is another glaring example of irregularity and violation of the right to equality. When the O.Ps. 6 to 21 are not recognized institutions and no recognition has been given by the statutory authority but their students have been allowed to appear in the examination, illegally by opposite parties 1 to 5, for which their examination should be declared null and void. 5.It is also stated that the action of the O.ps. by not granting permission to the students of the petitioner-institution permanent recognition, affiliation w.e.f. the session 2006-07, is illegal and improper. At the same time it is alleged, inter alia, that the grant of admission to the students of O.ps. 6 to 21 who have not obtained permission of the statutory authority, is illegal and bad in law. The question arose by the petitioner as to discrimination is quite evident from the action of the opposite party as the students of the petitioner-institution have been denied admission to the ANM course. So the petitioner was compelled to file this writ application praying therein to grant permanent recognition, affiliation and approval to the petitioner-institution w.e.f. the session 2006-07 with annual intake capacity of 50 students within the reasonable time, for declaring the admission/examination of the students to the ANM course of O.Ps. 6 to 21 from the date of establishment till date as null and void and to declare the certificate and recognition and registration number of pass out ANM students of O.Ps. 6 to 21 is equally null and void. 6.Counter has been filed by O.P. No.3.According to this O.P., the writ petition is not maintainable as the facts and law have not been disclosed by the petitioner and is produced on misrepresentation of facts. There is no cause of action to file this writ petition. 6 to 21 is equally null and void. 6.Counter has been filed by O.P. No.3.According to this O.P., the writ petition is not maintainable as the facts and law have not been disclosed by the petitioner and is produced on misrepresentation of facts. There is no cause of action to file this writ petition. It is stated that the prayer made in the writ petition is just an error made in the PIL matter for which the writ petition is not maintainable. It is further averred that Orissa Nurses and Midwives Registration Act, 1938 published in Orissa Gazette on 8th July, 1938 and this was made to provide registration and better training of Nurses, Health Visitors, Midwives and dais in Orissa and these Board was constituted under the name and style, Orissa Nurses and Midwives Examination Board, under the Government Orders, 1958.The Board is to grant any person who satisfies such condition and passed such examination as it may time to time Certificates in General Nursing and Midwifery. The Board has the power to request the State Government for recognizing hospital for the purpose of training and sending of candidates for examination for Certificate in General Nursing and Midwifery. In 1947 the Indian Nursing Council Act came into force to constitute, the Indian Nursing Council to establish a uniform standard of training for nurses, midwives and health visitors. It is a Central Act for which the Central Government has empowered the Board to recognize qualifications of general nursing, Midwifery, health visitors. Under the Act, regulations are issued to maintain uniform standard of nursing education by all training centres across the country. The syllabus is also issued by the INC to obtain recognized qualification. For the admission of the students and to enable such students to attend examination, the Chairman of the INC is required to make due inspection for the purpose of grant of recognized qualification. According to the provision of the Act, it has prescribed minimum requirement to start ANM/GNM training programme in the centres. 7.It is further averred in the counter that Orissa Nurses and Midwifery Examination Board was established for the purpose of enabling persons to receive, after appropriate Teaching and Examination, a certificate, testifying their adequate training and proficiency in Nursing and midwifery. 7.It is further averred in the counter that Orissa Nurses and Midwifery Examination Board was established for the purpose of enabling persons to receive, after appropriate Teaching and Examination, a certificate, testifying their adequate training and proficiency in Nursing and midwifery. For such purpose, an institution before admitting students and to start nursing programme, have to obtain permission from the INC and also subsequently the approval and recognition of State Nursing Council and Board to be obtained. After these formalities, the Board can hold examination. In 2006, a gazette notification was made by INC under the Act stating that granting of NOC/essential certificate for establishment of new nursing institutions by State Government should be the part of the guidelines issued by the INC. So w.e.f. 26.8.2008, the State Government is to issue NOC subject to fulfilment of stipulation made in the guidelines. An institution is accordingly granted permission for NOC with a request to take approval of the State Government for the purpose of recognition of the institution. It is further stated that as per guidelines of the INC, NOC has been issued by the State Government from the year 2006-07 onwards by accepting the proposals so received. According to the guidelines INC will take first inspection regarding suitability and viability of the institution, its infrastructure, staff, faculties, clinical facilities etc. So such NOC granted in pursuance of the aforesaid guidelines of INC, is not the recognition and affiliation to the institution but it is an essential certificate issued by the State Government with a view that for the said area, a training centre in the field of nursing education is essential. 8.In the counter it is stated that the State Government only after getting approval of INC, will issue recognition/affiliation to the concerned institution. In the Writ Appeal No.41 of 2010 disposed of by this Court on 13.9.2011, it has been observed that in view of the provisions of the Act and the regulations as well as guidelines issued therein, it is abundantly clear that any institution which is required to be established either in a public or private sector or by a society, must necessarily obtain recognition from State Government as required under the provisions of the Act to facilitate the Board for the purpose of conducting examination as per the provided syllabus particularly course of training either for nursing or for midwifery. In such recognition is not obtained by the institution and authorities, but the students appearing in the examination held by the Board, directing Board to issue such certificate to them, would be illegal. This observation has made by the Hon’ble Court by virtue of provision of Section 10 of the Act. 9.It is admitted in the counter that NOC/essential certificate has been granted to the petitioner-institution by the State Government on 18.9.2006 for the session 2006-07 with some stipulations made therein as required under the Act and guidelines. The said NOC which is the part of the INC guidelines, has not been challenged wherein stipulation I says that the institute will not be allowed to entertain admission of students without approval of INC and State Nursing Board. The stipulation III says that institution shall fulfill criteria prescribed by INC on infrastructure and staff. The stipulation VI speaks that NOC shall be withdrawn for violation of the terms and conditions. This is a fact that the petitioner-institution had applied for necessary permission from the INC, but on due enquiry, the Board found that the institution has some deficiencies with regard to the minimum requirements under the Act and guidelines for which permission of INC was not extended. With regard to O.Ps. 6 to 21, it is stated in the counter that ANM training centre under Government Training Centres, have a been functioning and established since long when there is no training institution under private sector. They are being running institutions of one 1941-80 having the INC approval and duly designated as approved/recognized institution and the INC is also undertaking periodical inspection of these institutions at different times. So far as ANM training centre at Daspalla, Dhenkanal and Bhawanipatna are concerned, they are INC approved and duly recognized institutions being established in 1980, 1970 and 1978 respectively. It is therefore, prayed to dismiss the writ petition. SUBMISSIONS: 10.It is submitted by learned Counsel for the petitioner that there are three statutes governing Orissa Nurses and Midwives Training. According to him Orissa State Nursing Council is governed by Orissa Nurses and Midwives Registration Act, 1938 (in short ‘Act, 1938’) and this Act is meant to grant recognition to the nursing institution and registration number to the students. SUBMISSIONS: 10.It is submitted by learned Counsel for the petitioner that there are three statutes governing Orissa Nurses and Midwives Training. According to him Orissa State Nursing Council is governed by Orissa Nurses and Midwives Registration Act, 1938 (in short ‘Act, 1938’) and this Act is meant to grant recognition to the nursing institution and registration number to the students. Similarly Orissa Nurses and Midwives Examination Board is governed by Orissa Nurses and Midwives Rules, 1958 ( in short ‘ONM Rules’) to conduct inspection to the nursing training institute, conduct examination and grant qualification/certificates to the students. The third one is Indian Nursing Council (in short ‘INC’) which is governed by Indian Nursing Council Act, 1947 (in short ‘Act’) to supervise, oversee and monitoring the nursing institutions across the country and it is a supervising body. According to him Part I of the Schedule of Section 10 of the Act enshrine about the recognition of the qualification, grant of qualification in general nursing, midwifery (auxiliary nursing midwifery), health visiting or public health nursing part II of Central Quota which not induced in the Part-I. He further stated that Section 12 of the Act entrust power to require information as to courses of study, training and examinations. Section 13 of the Act allows inspection of the institution which is recognized as training institution and to attend examination for granting any recognized qualification. Section 14 of the Act allows INC to withdraw recognition from the institution if such institution falls sort of the standard required for conducting examinations and the training imparted to the students to admit to such courses of the institution. According to Section 14 of the Act Indian Nursing Council may recommend to the State for action only after offering an opportunity to the concerned institution to submit explanation and remove deficiencies. 11.Learned Counsel for petitioner further submits that Section 16 of the Act, empowers the INC to frame the regulations showing the manner of inspection and manner of conducting examinations. He further submitted that Act, 1938 is specifically meant for the State Government to extend recognition to the institutions for opening the ANM courses whereas Rules, 1958 postulates about the manner of conducting examination and inspection to the institutions. He further submitted that Act, 1938 is specifically meant for the State Government to extend recognition to the institutions for opening the ANM courses whereas Rules, 1958 postulates about the manner of conducting examination and inspection to the institutions. He contended that thus three statues have got separate and distinctive role in granting recognition/affiliation to establish the nursing institutions, allowing institution to run course with proper curriculum and examination of students and granting certificates. 12.He further submitted that challenging the inaction of the opposite parties a writ was filed and it was disposed of by the learned Single Judge on this Court by allowing students of the petitioner institution to appear at the examination and to publish results. Against that order writ Appeal Nos. 40, 41 and other Writ appeals were filed where the Division Bench of this Court held that the institution which has got NOC and have been recognized by INC shall issue certificates to their respective students without giving any remark therein. However, those institutions which are not recognized by INC shall give a remark in the certificate of their students to the effect that the institution is not recognized and the said certificates have been issued by virtue of the Court’s order. Further it made clear that no permission shall be granted to any unrecognized institution to conduct any examination after 2006-07 session. Against the said order, modification petition was filed and it was allowed to the extent that the year 2006-07 be read as the year 2007-08. He also cited several decisions which will be discussed later on to prove that he is on the proper track and submitted to allow the petition. 13.Mr. J. Patnaik, learned Addl. Government Advocate for O.P.No.1 submitted that the State Government has no role except forwarding the application to the Indian Nursing Council ( in short ‘INC’) to take up the matter by the INC and the entire procedure of recognition is depending on the INC but not on the State Government. In the case of the petitioner as INC has not approved the application, no permanent recognition was extended to the petitioner-institution. Moreover, he submitted that O.Ps. 6-21 have got the recognition from INC since long for which the petitioner cannot be said to have been discriminated for receiving the grant of INC. 14.Mr. In the case of the petitioner as INC has not approved the application, no permanent recognition was extended to the petitioner-institution. Moreover, he submitted that O.Ps. 6-21 have got the recognition from INC since long for which the petitioner cannot be said to have been discriminated for receiving the grant of INC. 14.Mr. Dwivedy, learned Counsel for INC submitted that the INC holds the field for recognizing nursing course. Therefore, he further submitted that the petitioner-institution being not recognized permanently by the INC, cannot claim that the students can be allowed to appear at the examination and obtain certificates According to him Opp. Party No.5, the INC being under the Central Act will override the State Act and for that Indian National Council is competent to give recognition to any institution imparting the nursing education. He further contended that Act will govern all the fields and in any way the Act, 1938 will govern the field. He submitted that to dismiss the appeals. 15.He further submitted that there is a notification dated 19.08.2006, wherein it has been stated that the INC will cover the entire recognition of any nursing institution of the country under the Act because INC derives its power from the Act, which is enacted on the subject vide Entry No.66 of List I of 7th Schedule under Article 246 of the Constitution of India, whereas education or research in Scientific and Technical Training Institutions come under the Entry 25 of List III of VIIth Schedule, which is the concurrent list under the Constitution of India. According to him if statutes are covering the subject under List I and List III, the Parliament is the Supreme and Central Act is to be binding on all citizens in the country. He further submitted that according to judgment of this Court and other High Courts, Act is to prevail over any other statutes of the State on the subject in question. He submitted that the writ petition has been filed as if it is a public interest litigation for which, it is not maintainable in this Court. On the whole it is submitted to reject the writ petition. 16.Points for discussion: I.which authority is competent to grant permission/recognition/affiliation to the petitioner-institution II.whether judgment in W.A. No.40 of 2011 is applicable to the present case of parties ? On the whole it is submitted to reject the writ petition. 16.Points for discussion: I.which authority is competent to grant permission/recognition/affiliation to the petitioner-institution II.whether judgment in W.A. No.40 of 2011 is applicable to the present case of parties ? 17.Point No.I Since three statutes are governing the field of training of nursing, health visitors, midwives and dais in Orissa, it is necessary to discuss the relevant provisions of the different statutes.Act, 1938 was enacted with the preamble as stated therein to provide for the registration and better training of nurses, health visitors, midwives and dais in Orissa. This Act was legislated in 1938. Under Section 3 of the Act, 1938 a council is to be constituted in the name of Orissa Nurses and Midwives Registration Council. It is relevant to quote Section 10 and 11 of the said Act which are as under : “Section 10.Registration of nurses, health visitors, midwives, trained dais and dais – (1) Any person, who complies with such conditions and restrictions as may be prescribed by the council, and who – (a)has undergone the course of training or passed the examination, if any, prescribed for nurses, health visitors, midwives or trained dais; or (b)is registered as nurse or midwife by any association which is recognized by the State Government; or (c)is able to satisfy the Council that he has any where in India undergone a course of training or passed an examination similar to the course of training referred to in Clause (a) and recognised by the State Government. Section 11. Registers to be maintained – (1) The Registrar shall maintain the following registers, namely :- (a)a register showing the name and address of each registered nurse in Orissa; (b)a register showing the name and address of each registered health visitor in Orissa; (c)a register showing the name and address of each registered trained dai in Orissa. (2)The Registrar shall keep the registers in accordance with the provisions of this Act and of any rules or bye-laws made thereunder, and shall, from time to time, make all necessary alternations in the names and addresses of registered persona and remove the names of any such person who is dead. (2)The Registrar shall keep the registers in accordance with the provisions of this Act and of any rules or bye-laws made thereunder, and shall, from time to time, make all necessary alternations in the names and addresses of registered persona and remove the names of any such person who is dead. (3)the Registrar may, for the purpose of carrying out the duties imposed upon him by Sub-Sections (1) and (2) by registered letter sent to the registered address of any registered person, require such person to state whether he has ceased to practice, or whether his residence or address has been changed, and if no answer to any such letter is received within a period of six months from the date of its dispatch, the Registrar may remove the name of such person from the prescribed register. Provided that any name removed under this sub-Section may be re-entered in the register under the direction of the Council. (4)The Council may, by resolution, order to be removed or corrected any entry in a register, if it is satisfied that such an entry was fraudulently or incorrectly made.” 18.From the aforesaid provisions, it is clear that the nurses passing from the institutes recognised by the State Government can apply for registration as nurses, health visitors, midwives and dais in Orissa. This Section 10 deals with registration of individual to work such as nurses, health visitors, midwives and dais in Orissa. 19.Accordingly the said Council is to maintain the State Register showing the name and address of nurses, health visitors, midwives and dais in Orissa. Under Section 11 any person makes violation of the Rules or becomes a convict in a criminal case, can be removed from the Register. Section 15 of the Act, 1938 speaks in following manner - Section 19 – Power of Council to make bye-laws – The Council may, after previous publication, make bye-laws. Under Section 11 any person makes violation of the Rules or becomes a convict in a criminal case, can be removed from the Register. Section 15 of the Act, 1938 speaks in following manner - Section 19 – Power of Council to make bye-laws – The Council may, after previous publication, make bye-laws. (a)to prescribe the courses of training and examinations for nurses, health visitors, midwives, or trained dais and the qualifications for their registration; and to provide for the recognition of institutions competent to give such training; (b)to prescribe the conditions of, and restrictions on, the entry of the names of persons in the registers, the form of application for such admission and the fees for registration and the re-entry of names removed from any register; (c)to regulate the issue of certificates; (d)to regulate the maintenance of the registers; (e)prescribe the uniform or badge to be worn by registered nurses, registered midwives and registered trained dais while on duty; (f)to regulate the Publication of lists of registered nurses, registered midwives or registered trained dais; and (g)to regulate any matter required as authorised by this Act to be prescribed.” Above provision allowed Orissa Nursing and Midwives Regulation Council to make bye laws relating to courses of study, Training Programme and manner to conduct examination etc. to provide for recognition of institutions. 20.Indian Nursing Council Act, 1947 is to be discussed to find out the difference between the two statutes. It has been clearly mentioned in the preamble that this Act was enacted to constitute an Indian Nursing council in order to establish a uniform standard of training for nurses, midwives and health visitors. There are certain important definitions under the Act. They are described in the following manner : “2. (c) States Council means a Council by (whatever name called) constituted under the law of a State to regulate the registration of nurses, midwives or health visitors in the State; (d) State register means a register of nurses, midwives or health visitors maintained under the law of a State.” Section 10 : Recognition of qualifications : (1)For the purpose of this Act, the qualifications included in Part I 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 in consultation with the State Council, if any for the purpose of granting any 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 or nurses, midwives or health visitors, for the setting 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. Section 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. Section 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 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 so enrolled notwithstanding that he or she may not hold a recognized qualification : Provided further that any person who was immediately before the said date entitled to be enrolled in any State register but was not so enrolled shall; on application made in this behalf before the expiry of two years from the said date be entitled to be enrolled in that register; (c)any person holding a recognized higher qualification shall be entitled to have the qualification entered as a supplementary qualification in any State register in which he or she is enrolled, and after the said date no person shall be entitled to have entered as a supplementary qualification in any State register any qualification which is not a recognized higher qualification. Section 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 recognised as a training institution, and to attend examinations held for the purpose of granting any recognised qualification or recognised higher qualification. (2)Inspectors appointed under this Section shall report to the Executive Committee on the suitability of the institution for the purpose of training and on the adequacy of the training therein, or as the case may be, on the sufficiency of the examinations. (3)The Executive Committee shall forward a copy of such report to the authority or institution concerned, and shall also forward copies, with the remarks, if any, of the authority or institution concerned thereon, to the Central Government and to the State Government and State Council of the State in which the authority or institution is situated. (3)The Executive Committee shall forward a copy of such report to the authority or institution concerned, and shall also forward copies, with the remarks, if any, of the authority or institution concerned thereon, to the Central Government and to the State Government and State Council of the State in which the authority or institution is situated. Section 14 Withdrawal of recognition :- (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 recognised qualification from any authority in any State, or the conditions for admission to such courses or the standards of proficiency required from the candidates at such examinations are not in conformity with the regulations made under this Act or fall short of the standards required thereby, or (b)that an institution recognised by a State Council for the training of nurses, midwives, auxiliary nurse-midwives or health visitors does not satisfy the requirements of the Council, the Council may send to the Government of the State in which the authority or institution, as the case may be, is situated a statement to such effect, and the State Government shall forward it, along with such remarks as it may think fit to the authority or institution concerned and, in a case referred to in clause (b) to the State Council also, with an intimation of the period within which the authority or institution may submit its explanation to the State Government (2) on the receipt of the explanation or, where no explanation is submitted within the period fixed, then on the expiry of the period, the State Government shall make its recommendations to the Council. (3)The Council, after such further inquiry, if any, as it may think fit to make, and in a case referred to in Clause (b) of sub-Section (1), after considering any remarks which the State Council may have addressed to it, may declare, - (a) in a case referred to in clause (a) of that sub-Section, that the qualifications granted by the authority concerned shall be recognised qualifications only when granted before a specified date, or (b)in a case referred to in the said clause (b), that with effect from a date specified in the declaration any person holding a recognised qualification whose period of training and study preparatory to the grant to him of the qualification was passed at the institution concerned shall be entitled to be registered only in the State in which the institution is situated. (4)The Council may declare that any recognised qualification granted outside the States shall be a recognised qualification only if granted before a specified date. 21.From the aforesaid provision it is clear that Section 10 (1) (a) recognised qualification awarded under Part-I of Schedule. Qualifications under part-II of the Schedule shall be recognised for higher qualifications. Part-I of the Schedule annexed to the Act has got different categories, namely, (A) for general nursing, (B) for midwifery (C) for auxiliary Nursing midwifery (ANM) and (D) for health visitors. Vide serial No.13 under (A) category, Orissa Medical Examination Board has been recognized to issue certificates in nursing after conducting examination. Similarly vide serial No.32 of (A) category, it has recognized Orissa Nurses and Midwives Examination Board to issue certificates for diploma or degree in Nursing after examination is held. For ANM courses under (C) category vide serial No.3 Orissa Nurses & Midwives Examination Board can issue certificate to the students passing different ANM courses Interestingly sub-Section (2) of Section 10 has categorically mentioned that the Authority within the State being recognized by the State Government in consultation with the State Council, ma grant qualification in general nursing, midwifery auxillary (ANM) and health visitors which are not included in any of the schedule on application to the INC to have such qualification recognized by INC. On the other hand sub-Section (2) of Section 10 recognizes the qualifications not prescribed in Part I and II of the Schedule annexed to the Act. On the other hand sub-Section (2) of Section 10 recognizes the qualifications not prescribed in Part I and II of the Schedule annexed to the Act. It has been categorically stated in Section 11 that notwithstanding contained in any law, any recognized qualification under Part I & II of the Schedule can be sufficient for enrolment in any State Register. Section 13 (1) of the Act prescribes that the Executive Committee of the INC may appoint Inspectors to inspect any institution recognized as training institution and can also hold examination for the purpose of granting any recognized qualification or higher qualification as the case may be. Sub-Section (3) of Section 13 empowers the Executive Committee to forward the copies of inspection to the authority or institution concerned with a copy to the Central Government, the State Government and State Council of the State in which the authority or institution is situated. Sub-Section (1) of Section 14 is to the effect that after inspection by the executive committee of the INC, if it appears to the INC that the courses of training and examinations in order to obtain a recognized qualification from any authority in any State falls short of standards, it will send copy of report to the State Government or Central Government, as the case may be,. Central/State Government will supply the same to the concerned Institute or Sate Council as the case may be for removal of defects. After compliance when report is submitted by concerned Institute or State Council to State Government, State Government will send the same to INC with its remark. INC will consider the same and direct the State Government about qualifications recognized in the State where Institution is situated. 22.The aforesaid provisions as discussed, clearly reveal that INC has given importance to the State Government where the institutions are situated. Moreover, the aforesaid provisions clearly indicate that it has no bearing over the institution concerned directly so far as recognition/affiliation are concerned except declaration as to recognized qualifications to be enclosed by the concerned authority under the schedule attached to the Act. Moreover, the aforesaid provisions clearly indicate that it has no bearing over the institution concerned directly so far as recognition/affiliation are concerned except declaration as to recognized qualifications to be enclosed by the concerned authority under the schedule attached to the Act. It is also revealed from the aforesaid provisions that the emphasis has been laid on the recognition of the institution by the concerned State Government under State law and INC has also recognized concerned State authorities to issue the certificates after conducting examination and also recognized the State Register maintained by law of the State. These provisions clearly indicate that they are not mandatory but directory in nature. On the other hand, the provisions as enshrined show that it is only Policy Planning Body. In this case the State law is the law as existent on the date of enactment of the Act. As stated earlier, the Act, 1938 is the only provision of law of the State under which a person can register as nurse of ANM or Dai or health visitor. 23.However, under Section 15 of the Act, 1938 Orissa Nurses and Midwives Council has got power to make bye-law prescribing the courses, attending the examination for the nurses, health visitors, midwives and trained dais and qualification for their registration and to provide them recognition for their institution to impart such training. Moreover, under the same provision, there is provision to make bye law prescribing the conditions of entry of the names of persons qualified for the entry in the Registers, to regulate the issue of certificates and to regulate maintenance of registers along with other power as prescribed at time to time. We are, therefore, of the considered view that when Section 15 of the Act, 1928 (State law) entrusts the State Council to prescribe curriculum of the training of concerned subject, conducting examination and issue of certificates, it cannot be said that there is no State law to govern the field. This provision of law has also got recognition of Act inasmuch as the INC Act has laid emphasis on the recognition of institution to impart training by State law inside the State to implement the provision. 24. Rules, 1958 are prepared after the Act, 1938 enacted Rule 4 (1) & (ii) are quoted below : “4. This provision of law has also got recognition of Act inasmuch as the INC Act has laid emphasis on the recognition of institution to impart training by State law inside the State to implement the provision. 24. Rules, 1958 are prepared after the Act, 1938 enacted Rule 4 (1) & (ii) are quoted below : “4. (I) There shall be an Examination Sub-Committee consisting of three members, (a) President, (b) Superintendent, SCB Medical College Hospital, Cuttack (c) the Asst. Director, Maternity & Child Health, Orissa but when the post of Superintendent, SCB Medical College Hospital, Cuttack or Asst. Director of Maternity & Child Health, Orissa is vacant, a member may be nominated by the President. Ordinarily the nominated member will hold office for one year, but will be eligible for re-nomination. (II) There shall be an Inspection Sub-Committee of not less than two members to inspect approved training institutions and hospitals and also those seeking approval as training institution. They shall ordinarily hold office for one year but will be eligible for re-nomination. 25.Rule 51, 52, 70, 71 & 72 are also quoted herein below : 51. The following hospitals are recognized institutions for the training in General Nursing and Midwifery. 1.SCB Medical College Hospital, Cuttack. 2.Government head Quarters Hospital, Berhampur. 3.Government head Quarters Hospital, Baripada. 4.Christian Hospital for Women & Children, Berhampur. 5.Moorahead Memorial Hospital, G. Udayagiri. 6.Medical College & Hospital, Burla (G.O. No.13539-II Dt. 3.7.63). 7.Ispat General Hospital, Rourkela (G.O. No.13377-II Dt.1.7.63). 52. The list may be added to or modified from time to time on the recommendation of the Board. These institutions shall be inspected as and when necessary by the Inspection Sub-Committee as per rule 31 who will report to the board about particulars as laid down in Appendix G. A hospital situated outside the State may be recognized by the board for training purposes if it has been recognized by the corresponding Statutory Examination Board of the State in which it is situated provided there exists reciprocal recognition between this Board and the corresponding Examination Board outside. 70.A candidate who has taken her training in a centre affiliated to any State Nursing Council or Examining Body recognized by the Indian Nursing Council shall be allowed to take her examination under this Board provided she produced transfer certificate as authenticity for having undergone such training. 71. 70.A candidate who has taken her training in a centre affiliated to any State Nursing Council or Examining Body recognized by the Indian Nursing Council shall be allowed to take her examination under this Board provided she produced transfer certificate as authenticity for having undergone such training. 71. The following hospitals are recognised institutions for training of Auxiliary Nurse-Midwives. 1. SCB Medical College Hospital, Cuttack. 2. Government Head Quarters Hospital, Berhampur. 3. Government head Quarters Hospital, Puri. 4. Government head Quarters Hospital, Baripada. 5. Government head Quarters Hospital, Sambalpur. 6. Government head Quarters Hospital, Balangir. 7. Government head Quarters Hospital, Balasore. 8. Capital Hospital, Bhubaneswar 9. Medical College Hospital, Burla (G.O. lNo.13539 Dt. 3.7.63.. 72. The list may be added to or modified from time to time on the recommendation of the Orissa Nurses & Midwives Examination Board. These institutions shall be inspected as and then necessary by the Inspection Sub-Committee as per rule 31, who will report to the Board about particulars as laid down in Appendix G. A Hospital situated outside the State may be recognized by the Board for training purposes if it has been recognized by the corresponding statutory Examination Board of the State in which it is situated, provided there exists reciprocal recognition between this Board and the corresponding Examination Board outside. 26.The aforesaid provisions clearly indicate that the Government institutions having been recognized as institutions for raining of ANM/GNM/Nursing/Dai by the State Nursing Council or the examining body recognized by the INC, can conduct examination and grant certificates. Even if nine Government institutions have been recognized institutions for training of ANM/GNM/Nursing etc, Rule 72 has allowed to add other institutions to conduct examination after imparting training. It appears that there is no conflict between the Act and the Act, 1938 and its role inasmuch as the Act only is just like a Policy Planning Body in order to maintain uniform standard of nursing education through out the country whereas the State Legislature has taken care of the recognition/affiliation of the institution and implementation of the nursing education by the institution. Similarly the mechanism by the concerned Orissa Nurses and Midwives Examination Board has been recognised to distribute certificates of qualification under the Act after the procedure of making inspection and verifying the manner of training examination and preparation of curriculum. Similarly the mechanism by the concerned Orissa Nurses and Midwives Examination Board has been recognised to distribute certificates of qualification under the Act after the procedure of making inspection and verifying the manner of training examination and preparation of curriculum. So it has got distinct jurisdiction being derived from the Act, 1938.The Act only facilitates the provision of the State Act and Rules of the State to go ahead without exercise of any role over the institution. It appears that the inspection by the INC over any institution of the State has only to act as elder brother in the State-younger brother but not converse. 27.While the matter stood thus, realizing the fact that the Act has no control over the State law in connection with State Register except its jurisdiction as an advisory nature, the INC issued guidelines in 2001 vide Annexure-3 of counter for minimum requirements for setting up a school of nursing in the following manner. GUIDELINES AND MINIMUM REQUIREMENTS FOR SETTING UP OF A SCHOOL OF NURSING. GUIDELINES The following are the minimum pre-requisites for recognition of a School of Nursing offering a Diploma in General Nursing and Midwifery programme. The authority which desires to open a School of Nursing has to furnish the following documentary proof to the Indian Nursing Council and comply with the following: 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 or Nursing, should obtain the No Objection/Essential certificates from the State Government. 2. 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. 3. 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. 4. Institution will admit the students only after taking approval of State Nursing Council and Examination/University. 5. 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. 4. Institution will admit the students only after taking approval of State Nursing Council and Examination/University. 5. 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. 28.In the above Guideline, there is also provision that the institution intending to set up a school of nursing has to obtain first the NOC, essential certificate from the State. Again it is maintained that the concerned institution after obtaining NOC from the State Government has to comply with the INC who will make inspection and accord approval to start the nursing programme. Guideline has no legal recognition because of the fact that there is no such provision in law to extend its approval for opening of the school of nursing. Such Guideline cannot be accepted legally. Moreover, there is no provision that on 11.7.2006, regulation was issued under Section 16 of the Act showing syllabus to be effective from 22.12.2001.The opposite party has not produced such notification in clear form. The opposite party has tried to convince that there is another regulation No.11-1/2006 INC Gazette vide No.5 dated 22.1.2007 publishing syllabus and regulations passed by the Parliament endorsing the powers on the lines of the guidelines as stated above for running the ANM course and other Nursing courses by the concerned institutions. Learned Counsel for the petitioner objected to such regulation stating that such regulation was not legally valid due to lack of proper legislative process being followed under the Act. Section 16 of the Act emanates: 16. Learned Counsel for the petitioner objected to such regulation stating that such regulation was not legally valid due to lack of proper legislative process being followed under the Act. Section 16 of the Act emanates: 16. Power to make regulations:- (1) The Council may be notification in the Official Gazette, 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 power, such regulations may provide for – (a) the management of the property of the Council and the maintenance and audit of its accounts; (b) the manner in which elections referred to in sub-Section (2) of Section 5 and in clause (a) of sub-Section (2) of Section 8 shall be conducted; (c) The summoning and holding of the meetings of the Council, the times and places at which such meetings shall be held, the conduct of business threat and the number of members necessary to constitute a quorum; (d) prescribing the functions of the Executive Committee, the summoning and holding of meetings thereof, the times and places at which such meetings shall be held, and the number of members necessary to constitute a quorum; (e) prescribing the powers and duties of the President and the Vice President; (f) prescribing the tenure of office and the powers and duties of the Secretary and other officers and servants of the Council. (ff) prescribing the powers and duties of inspectors;] (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 recognition under this Act; (j) any other matter which is to be or may be prescribed under this Act. (2) To enable the Council to be first constituted, the President may, with the previous sanction of the Central Government, make regulations for the conduct of the elections referred to in sub-Section (2) of Section 5, and any regulations so ,made may be altered or rescinded by the Council in exercise of its powers under this Section. (2) To enable the Council to be first constituted, the President may, with the previous sanction of the Central Government, make regulations for the conduct of the elections referred to in sub-Section (2) of Section 5, and any regulations so ,made may be altered or rescinded by the Council in exercise of its powers under this Section. {(3) Every regulation made under this Act shall be laid, as soon as may be after it is made before each House of Parliaments, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the regulation or both Houses agree that the regulation should not be made, the regulation shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that regulation.} 29.The aforesaid provisions make it clear that the INC has power to frame regulations on the subjects assigned but the same cannot be in-consistent with the provisions of the Act and such regulation only will be having legislative effect after it is laid before both the houses of Parliament for a total period of 30 days which may be comprised in one session or two or more successive sessions. In order to satisfy the Court, the opposite parties placed the copy of the lay of the concerned regulation by Dr. Ambumani Ramdas, the then Minister of Health and Family Welfare Department in Rajya Sabha. It was placed on 2nd January, 2007 before the upper house but there is nothing produced by opposite parties that such regulation was placed for 30 days in one session or successive sessions to give full effect to such regulation which is issued as described above. So the guidelines, 2001 and subsequent regulation in the name and style syllabus for ANM, cannot be made part of the Act. 30.In the meantime the State Government finding shortage of trained nursing personnel, issued list of nursing schools and colleges on the application made by different institutions. So the guidelines, 2001 and subsequent regulation in the name and style syllabus for ANM, cannot be made part of the Act. 30.In the meantime the State Government finding shortage of trained nursing personnel, issued list of nursing schools and colleges on the application made by different institutions. It is admitted fact of both the parties that the present petitioner-organisation has got NOC for the year, 2006-07 and vide serial No.33, the name of the present petitioner finds place. The opposite parties produced a guideline issued by the State Government vide letter dated 26.7.2008.This is with regard to issue of NOC for opening new ANM/GNM training centres in the State. For better appreciation relevant portion of the said notification is given below. Govt. of ORISSA, HEALTH & F.W. DEPARTMENT No. ME-II-IXM-45/08 17618/HFW Dated 26.7.2008. Xxxx xx xx I am directed to say that the guidelines for establishment of new Nursing Schools in India is contained in the Syllabus of Indian Nursing Council. The guidelines inter alia, envisage that any Organization under the Central Govt., State Govt. Local Body or a private or public Trust, Mission, Voluntary Organisation registered under the Society Registration Act who wishes to open a School of a School of Nursing should obtain the No objection certificate (NOC) from the State Government. The said Organisations shall apply to the Indian Nursing Council (INC) along with NOC. 2.Presently there is no guideline regarding issuing of NOC. But there are a large number of Nursing personnel necessitating opening of more Nursing Schools particularly in such of the areas where Nursing schools are non existent or not available in required nursing. 3.After careful consideration, Government have been pleased to formulate the following guidelines for issue of NOC for opening of new Nursing Schools. (i) Any Organisation having a Hospital with 150 beds including 30-50 O & G beds and 100 delivery cases monthly can open ANM Schools as per INC guidelines. Such Schools should have an affiliation of HPC/CHC for the community health Nursing field experience. If such proposals are received NOC shall ordinarily be issued. (ii) Affiliation of existing Training Schools to the District Headquarters (Secondary Care Hospital) can be given to not more than 3 Nursing Schools. Therefore, fresh proposals are to be considered taking into consideration the affiliations already existing in a Secondary Health Care Hospital. If such proposals are received NOC shall ordinarily be issued. (ii) Affiliation of existing Training Schools to the District Headquarters (Secondary Care Hospital) can be given to not more than 3 Nursing Schools. Therefore, fresh proposals are to be considered taking into consideration the affiliations already existing in a Secondary Health Care Hospital. Where 3 such institutions are already affiliated, no further NOC shall be given on the Secondary Care Hospital. (iii) Fresh applications shall be considered with reference to possibilities of affiliation to the Secondary Care Centres and not more than 3 Schools shall be allowed to be affiliated to a Secondary Care Centre. Therefore the proposal for opening of new Nursing Schools should clearly contain, the Secondary Care Hospital to which it intends to be affiliated. (iv) Institutions/Organisations intending to open Nursing Training Schools should furnish an audited statement of their own accounts along with financial statement of the previous years to ascertain whether an institution can undertake establishment and continuance of such a Training Centre. (v) The number of seats in any Nursing School imparting ANM course shall not be more than 40 and the same would be 60 (sixty) in case of GNM Course. This maximum number will depend on availability of infrastructure of the proposed School and certain other condition as prescribed. (vi) Presently there is no Calendar prescribing duty for receiving of applications and issuing of NOC. So the following Calendar of dates is prescribed for the purpose. (a) Applications for opening of new Schools shall be received from 1st August to 31st August of every year. (b) These applications shall be processed by 30th September of every year and NOC issued during this period. In order to solicit such applications an advertisement to this effect shall be issued by Government prior to 1st August of every year. (vii) Institutions seeking no No Objection Certificate shall deposit Rs.5000/- (Rupees five thousand only) along with their application in shape of Bank Draft payable to Orissa Nursing and Midwifery Examination Board ( in short Board). The Board shall deposit this amount in a separate account to be operated as per the extent practice of the Board Expenditure out of this fund shall be authorized jointly by D.F.W. and D.H.S. Orissa. 4.A Committee comprising of the following persons shall consider the applications received and suggest to Government regarding issue of NOC. The Board shall deposit this amount in a separate account to be operated as per the extent practice of the Board Expenditure out of this fund shall be authorized jointly by D.F.W. and D.H.S. Orissa. 4.A Committee comprising of the following persons shall consider the applications received and suggest to Government regarding issue of NOC. a.D.M.E.T.-Chairman b.Jt./Dy.Secretary (FW)- Member c.D.H.S., Oissa -do- d. D.F.W., Orissa- -do- They will be assisted by Deputy Director, Nursing/Assistant Director (Nursing). 5.With these guidelines in position, the following actions shall be taken in respect of the organizations who have received NOC earlier. I. Institutions who have already opened such Schools for ANM, GNM course without approval of the Indian Nursing Council shall be advised to obtain permission from the Indian Nursing Council and after receipt of such permission should obtain approval from the State Nursing Council and Orissa Nursing and Midwifery Examination Board ( in short ‘Board’). If they do not obtain such permission, the NOC given by the State Government would be liable to be revoked. The D.F.W. will issue letters to all existing Institutions giving them a dateline for compliance. II. Since the maximum number of seats in any Nursing School shall not be more than 40 for ANM Course & 60 GNM Course, institutions already operating more seats shall not be allowed more than 40/60 seats from the next academic session.Such institutions shall be instructed accordingly by the D.F.W. III. Indian Nursing Council may be requested to expedite their inspection in respect of institutions which after receiving NOC from the State Govt. have applied to the I.N.C.” Xxxxxxxx Yours faithfully, Sd/- Commissioner-cum-Secretary to Government.” 31.The aforesaid provisions show that they have been issued by the State Government due to syllabus issued by the INC but it has been already discussed in the above para that such guidelines or regulation being not in conformity with the Act, are not binding in nature. So the guideline issued by the State Government on 26.7.2008 on the line of the regulation of the INC is equally not binding in nature. Even if it is taken into consideration, it can be prospective in nature and cannot be retrospective to take care of the year in question in 2006 and 2007 when the petitioner has already got NOC from the State to open the nursing school. Even if it is taken into consideration, it can be prospective in nature and cannot be retrospective to take care of the year in question in 2006 and 2007 when the petitioner has already got NOC from the State to open the nursing school. In the above guideline at para-5, the State Government has advised the institutions like petitioner-institution to obtain approval of INC and after receipt of such permission, are also to obtain approval from the State Nursing Council and Orissa Nursing Midwifery Examination Board. When the guidelines of the INC are not in accordance with law and the provisions of the Act and consequently not valid in law, the instructions issued in the above guidelines by the State Government is equally inoperative, illegal and unjust. On the otherhand the instructions issued by the State Government being contrary to the Act, 1938 and the Rules, 1958, because of the fact that Act, 1938 has asserted about recognition of the institution, manner of imparting training, preparation of curriculum and conducting of examinations by the Orissa Nurses and Midwives Examination Board and Rule, 1958 also enshrines about entire procedure of inspection, manner of training and holding examination and issue of certificate being duly authorized by the Act, the guidelines as posed by the opposite parties, as stated above, the same guidelines have been issued by non-application of mind by the State Government. 32.It is reported in Union of India v. Naveen Jindal and others, 2004 SC 1559 where Their Lordships held in the following manner : “ In Punit Rai v. Dinesh Chaudhury (2003) 8 SCC 204 ), this Court held that a circular letter as regards determination of caste of a child born from a non-Scheduled Caste Hindu father and a Scheduled Caste mother shall not have the force of the statute, stating: “The said circular letter has not been issued by the State in exercise of its power under Article 162 of the Constitution of India. It is not stated therein that the decision has been taken by the Cabinet or any authority authorized in this behalf in terms of Article 166 (3) of the Constitution of India. It is not stated therein that the decision has been taken by the Cabinet or any authority authorized in this behalf in terms of Article 166 (3) of the Constitution of India. It is trite that a circular letter being an administrative instruction is not a law within the meaning of Article 13 of the Constitution of India (See Dwarka Nath Tewari v.State of Bihar)” 33.With due respect to the said decision, it is found that the Government instructions issued to regulate use of national flag is not a law within the meaning of Article 13 of Constitution of India. Moreover, it is settled law that the Government instructions having no support of Act or Rule or is not issued with any legislative authority, cannot be law under Article 13 of the Constitution. In either of the way, we are of the considered view that such guidelines were issued under Section 16 of the Act as depicted above or the said guidelines cannot be held law. As long as the Act, 1938 have not been suitably amended, such guidelines issued by the INC asserting right over the State Government and its instructions and surrendering the power by the State Government to the INC, is utterly disregard to law and must be adjudged to be violation of natural justice. It must be ensured that the Nursing education which is important for the lives of the human beings should be looked into by the authorities. 34.It is also submitted by the learned Counsel for the opposite parties that the subject being the subject of List I, where Union of India is competent to legislate law, the State has no power to legislate any law. On the other hand the petitioner submitted that since the subject in the concurrent list and the State law has been enacted earlier to the Central legislation, the doctrine of pith and substance may arise. At the same time learned Counsel for the petitioner submitted that there is no conflict between the two legislations so far as the subject is concerned. In our view, this matter requires consideration. Entry No.66 of List I – Union List under Article 246 of the Schedule of the Constitution of India stated as below : 66. Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions. In our view, this matter requires consideration. Entry No.66 of List I – Union List under Article 246 of the Schedule of the Constitution of India stated as below : 66. Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions. 35.Entry 25 of List III (concurrent list) under Article 246 of the Schedule of the Constitution of India also speaks as under : “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.” 36.It is admitted fact that subject of Nursing Education being the subject of education under Entry 25 of concurrent list and at the same time the expression “co-ordination” used in entry 66 of List I – Union List of the VIIth Schedule to the Constitution, it does not mean they overlap such other. It means harmonization of two with a view to forge a uniform partition for concerted action according to a certain design, scheme or plan of the development. In this regard reliance can be placed upon the decision in Dr. Preeti Srivastava and another v. State of M.P. and others reported in 1999 (l7) SCC 120. “Both the Union as well as the States have the power to legislate on education including medical education, subject, inter alia, to Entry 66 of List I which deals with laying down standards in institutions for higher education or research and scientific and technical institutions as also coordination of such standards. A State has, therefore, the right to control education including medical education so long as the field is not occupied by any Union legislation. Secondly, the State cannot, while controlling education in the State, impinge on standards in institutions for higher education. Because this is exclusively within the purview of the Union Government. Therefore, while prescribing the criteria for admission to the institutions for higher education including higher medical education, the State cannot adversely affect the standards laid down by the Union of India under Entry 66 of List I. Secondly, while considering the cases on the subject it is also necessary to remember that from 1977, education, including, inter alia, medical and university education, is now in the Concurrent List so that the Union can legislate on admission criteria also. If it does so, the State will not be able to legislate in this field, except as provided in Article 254. It would not be correct to say that the norms for admission have no connection with the standards of education, or that the rules for admission are covered only by Entry 25 of List III. Norms of admission can have a direct impact on the standards of education. Of course, there can be rules for admission which are consistent with or do not affect adversely the standards of education prescribed by the Union in exercise of powers under Entry 66 of List I. For example, a State may, for admission to the postgraduate medical courses, lay down qualifications in addition to those prescribed under Entry 66 of List I. This would be consistent with promoting higher standards for admission to the higher educational courses. But any lowering of the norms laid down can and does have an adverse effect on the standards of education in the institutes of higher education...... “(P.154). 37.It is also reported in R. Chitralekha and another v. State of Mysore and others, reported in AIR 1964 SC 1823 where Their Lordships observed : Does the judgment mean that it has to be ascertained in each case whether the impact of the State law providing for such standards is so great on Entry 66 of List I as to abridge appreciably the central field? Or, does it not follow from the judgment that if a State Legislature has made a law prescribing a different, even higher, percentage of marks or prescribing marks for extra curricular activities, it would be directly encroaching on the field covered by Entry 66 of List I ? The majority judgment after saying what has been quoted above proceeds thus: “Though the powers of the Union and the State are in the exclusive lists, a degree of overlapping is inevitable. It is not possible to lay down any general test which would afford a solution for every question which might have arise on this head. On the one head, it is certainly within the province of the State Legislature to prescribe syllabi and courses of study and of course to indicate the medium or media of instruction. It is not possible to lay down any general test which would afford a solution for every question which might have arise on this head. On the one head, it is certainly within the province of the State Legislature to prescribe syllabi and courses of study and of course to indicate the medium or media of instruction. On the other hand, it is also within the power of the Union to legislate in respect of media of instruction so as to ensure coordination and determination of standards, that is, to ensure maintenance or improvement of standards. The fact that the Union has not legislated or refrained from legislating to the full extent of its powers does not invest the State with the power to legislate in respect of a matter assigned by the Constitution to the Union. It does not, however, follow that even within the permitted relative fields there might not be legislative provisions in enactments made each in pursuance of separate exclusive and distinct powers which may conflict. Then would arise the question of repugnancy and paramountcy which may have to be resolved on the application of the ‘doctrine of pith and substance’ of the impugned enactment... the validity of State Legislation would depend upon whether it prejudicially affects coordination and determination of standards, but not upon the existence of some definite Union legislation directed to achieve that purpose.” (P. 716). 38.Not only this but also in Civil Appeal (Civil) 1626-1628 of 2004 (State of Tamil Nadu and another v. Bratheep (Minor) and others) disposed of on 16.3.2004, the Hon’ble Apex Court has also followed the decision of Dr. Preeti Srivastava (supra) and Their Lordships observed as under : Entry 25 of List III and entry 66 of List I have to be read together and it cannot be read in such a mnner as to from an exclusively in the matter of admission, but if certain prescription of standards have been made pursuant to Entry 66 of list I, then those standards will prevail over the standards fixed by the State in exercise of powers under Entry 25 of List III insofar as they adversely affect the standards-laid down by the Union of India or any other authority functioning under it. Therefore, what is to be seen in the present case is whether the prescription of the standards made by the State Government is in any way adverse to, or lower than, the standards fixed by the AICTE. It is no doubt true that the AICTE prescribed two modes of admission – One is merely dependent on the qualifying examination and the other dependent upon the marks obtained at the Common Entrance Test. The appellant in the present case prescribed the qualification of having secured certain percentage of marks in the related subjects which is higher than the minimum in the qualifying examination in order to be eligible for admission. If higher minimum is prescribed by the State Government than what had been prescribed by the AICTE, can it be said that it is in any manner adverse to the standards fixed by the AICTE or reduces the standards fixed by it ? In our opinion, it does not. On the other hand, if we proceed on the basis that the norms fixed by the AICTE would allow admission only on the basis of the marks obtained in the qualifying examination the additional test made applicable is the common entrance test by the State Government. 39.With due respect to the aforesaid authorities, we are of the considered view that the education being in the concurrent list, the Nursing education can be considered in the entry 25 of the said List and at the same time, coordination and determination of standard in institution for higher education for research and scientific education enters under entry 66 of List I. In fact after going through the Act and Act, 1938 read with Rules, 1958, we are of the considered view that the Central Government in order to maintain uniform standard of Nursing education, has to only decide the qualification and for that purpose can inspect any institution and can devolve any sort of examination, curriculum and State being the authority of education has to apply the same by enacting the provision of law keeping the standard as advised by the Act so that uniformity can be maintained throughout the country. The State Government cannot make out any sort of standard of curriculum or attending of examination or any sort of manner of training below the standards prescribed by the Act. The State Government cannot make out any sort of standard of curriculum or attending of examination or any sort of manner of training below the standards prescribed by the Act. After discussion in the aforesaid paras, we are of the considered view that there is no conflict between the two legislations inasmuch as it is clear that the Act explicitly declares power of INC so far as declaration of qualification concerned but the recognition of institution, holding examination, inspection and manner of training are all prescribed by the Act, 1938 read with Rules, 1958.The guidelines in the statutory provision as discussed above. Hence it is the State Government to extend permanent recognition to the petitioner-institution for imparting training in ANM courses but not the INC. Point No.I is answered accordingly. Point No.II. 40.Learned Additional Government Advocate and learned Counsel for other opposite parties submitted that there is judgment in Writ Appeal No.40 of 2010 deciding that INC has to extend the recognition to the petitioner-institution whereas learned Counsel for the petitioner rebutted the same stating that the ratio of the said decision is not applicable to its case. We perused the judgment passed in Writ Appeal No.40 of 2010 preferred against the judgment of learned Single Judge of this Court. On going through the same, it appears that the judgment has only discussed the provisions of the Act, without discussing the applicability of Act, 1938 and rules, 1958.Apart from this, the present petitioner-institution was not party to that writ appeal. It has been observed in the aforesaid decision that the respondent No.1 institution was not recognized one and it can only be given recognition after INC takes decision. In the case in hand, the petitioner-institution admittedly has got recognition from the State Government being in Serial No.33 of the list of nursing school and colleges as discussed above. Moreover, W.A. No.40 of 2010 does not resolve the dispute of recognition to petitioner-institution for the year, 2006-07.We, therefore, of considered view tht the facts and circumstances of the writ appeal is not the same and the points of law discussed therein being not similar to the present case, the decision of writ appeal is not applicable to the present case. Point No. II is answered accordingly. Point No.III. 41.It has been submitted by the learned Counsel for the contesting opposite parties that O.Ps. Point No. II is answered accordingly. Point No.III. 41.It has been submitted by the learned Counsel for the contesting opposite parties that O.Ps. 6-21 have already got the approval of INC and the state Government for which Iitcannot be said that denying of the relief to the petitioner is absolute discrimination exercised by the concerned authority. O.Ps.6-21 have not filed counter but it is revealed from the counter of O.Ps. 3 & 5 that the O.Ps,. 6-21 institutions s have got approval of INC in different years. Since we have already held that the approval of INC for setting up of ANM courses and other Nursing courses, is unwarranted it is not required to verify the facts narrated in the counter. But the facts remained that the State Government have extended the recognition to the said opposite party Nos.6-21. In view of our view in Point Nos. I & II, we failed to understand as to why the petitioner-institution who has got approval of State Government for 2006-07 to open ANM courses will not be extended permanent recognition. On the other hand, we are of the view that the petitioner-institution has also been discriminated when the State Government being competent have extended recognition to O.ps. 6-21. Point No. III is answered accordingly. CONCLUSION 42.In view of aforesaid analysis and the decision of the Hon’ble Apex Court, we are of the considered view that the petitioner-institution is entitled to receive permanent recognition to run ANM courses from 2006-07. It is revealed from the petition and the counter of the contesting opposite parties that the inspection by State authority and INC has already been made, the petitioner has already been allowed to carry on the training of the students in 2007-08 after obtaining approval w.e.f. 2006-07 as per Annexure-3 but the students are not allowed to appear in the examination. Since the decision in Writ Appeal No.40 of 2011 is not applicable to the facts of the case and finding that INC has no role except advisory one, the students of the petitioner-institution should be allowed to appear in the examination held by Orissa Nursing and Midwifery Board and in the event of passing of the same, they should be awarded certificates in ANM courses without being influenced by the guidelines of the Central or State Governments already issued illegally, as held in the aforesaid para within a period of two months from today. So far as declaration of institution of O.Ps. 6-21 cannot be declared void as they have got recognition of the State Government bereft of approval of INC. We, therefore, direct O.Ps. 1 to 4 to extend permanent recognition/affiliation to the petitioner-institution w.e.f. 2006-07 to run ANM Training Courses, allow students of petitioner-institution to appear examination and on passing out, issue certificates as per uniform standard prescribed by the INC. The writ petition is disposed of accordingly. I. MAHANTY, J.I agree. Petition disposed of.