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2024 DIGILAW 520 (RAJ)

State of Rajasthan v. St. Wilfred Nursing College

2024-04-01

MUNNURI LAXMAN, PUSHPENDRA SINGH BHATI

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ORDER : 1. Learned counsel for the parties jointly submit that the controversy involved in the present appeals is squarely covered by the judgment rendered by this Court in the matter of State of Rajasthan Vs. Private Physiotherapy, Nursing and Paramedical Institution Society (D.B. Special Appeal Writ No. 11/2023), decided on 01.03.2024 along with other connected matters. They submit that the present appeals may be disposed of in light of Private Physiotherapy, Nursing and Paramedical Institution Society (supra); the operative portion of order dated 01.03.2024 reads as under: “7. Heard learned counsel of the parties as well as perused the record of the case alongwith the judgment cited at the Bar. 8. This Court observes that for establishing new nursing institution or enhancement of the seats in the existing nursing institutions, the concerned organization is required to obtain an NOC from the State/State Body i.e. Rajasthan Nursing Council. The appellant-State issued the policy dated 07.06.2022 imposing a condition of 100 bedded own hospital for the purpose in question, which is a clear contravention of the Regulations of 2020 enacted by the Central Legislature. 9. This Court further observes that the condition of 100 bedded own hospital provided under the policy dated 07.06.2022 was challenged before the learned Single Judge of this Hon’ble Court, and the learned Single Judge vide the impugned order quashed the said condition. 9.1. This Court also observes that the learned Single Judge in the impugned order framed a question for adjudication, which is reproduced as hereunder: “Whether the State Government can impose a condition of having 100 bedded own hospital to get “No Objection Certificate” for establishment of the Nursing Colleges/enhancement of the seats in such Colleges?” 10. This Court further observes that the condition of 100 bedded own hospital in policy dated 07.06.2022 is reproduced hereunder: [HINDI IMAGE] 11. This Court also observes that the condition of 100 bedded parent/own hospital as provided under the Regulations of 2020 enacted by the Central Body i.e. Indian Nursing Council, reads as under: “1. Parent Hospital (Unitary/Single Hospital) College of Nursing should have 100 bedded parent/own hospital which is compulsory requirement. Parent Hospital for a nursing institution having the same Trust/Society/Company which has established the nursing institution and has also established the hospital. Parent Hospital (Unitary/Single Hospital) College of Nursing should have 100 bedded parent/own hospital which is compulsory requirement. Parent Hospital for a nursing institution having the same Trust/Society/Company which has established the nursing institution and has also established the hospital. OR For a nursing institution (managed by Trust/Society/Company under Section 8), a ‘Parent Hospital’ would be a hospital either owned and controlled by the Trust/Society/Company or managed and controlled by a trustee/member/director of the Trust/Society/Company. In case the owner of the hospital is a trustee/member/director of the Trust/Society/Company, then the hospital would continue to function as a ‘Parent Hospital’ till the life of the nursing institution. The undertaking would also be to the effect that the trustee/member/director of the Trust/Society/Company would not allow the hospital to be treated ‘Parent/Affiliated Hospital/ to any other nursing institution and will be for minimum 30 years (i.e. signed by all trustees/members/directors of Trust/ Society/Company) to the Undertaking to be submitted from the trustee/member/director of the Trust/Society/Company. The beds of Parent hospital shall be in one Unitary Hospital i.e. in same building/same campus. Further, the Parent Hospital shall be in the same State i.e. where the institution is located. (a) It is to be noted that once a particular hospital is shown as “Parent Hospital” and permission given to the nursing institution to conduct nursing courses, then, the permission/suitability granted would last as long as the said hospital is attached as a “Parent Hospital.” (b) In case the trustee/member/director of the Trust/Society/Company withdraws the Undertaking given, in that case even the permission/suitability letter issued would be deemed to have lapsed/stand withdrawn with immediate effect.” 12. This Court further observes that Article 246 of the Constitution of India pertains to “Subject-matter of laws made by parliament and by the Legislatures of the State”; the said Article confers power for making the laws as per Entry 66 of Union List in Seventh Schedule of the Constitution of India, which pertains to “Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions.”. This Court also observes the Central Legislature had enacted the Indian Nursing Council Act, 1947, and as per the power conferred by Section 16 of the said Act, the Regulations of 2020 were enacted, wherein the condition of 100 bedded parent/own hospital has been incorporated. 12.1. This Court also observes the Central Legislature had enacted the Indian Nursing Council Act, 1947, and as per the power conferred by Section 16 of the said Act, the Regulations of 2020 were enacted, wherein the condition of 100 bedded parent/own hospital has been incorporated. 12.1. This Court further observes that the learned Single Judge held in the impugned order that the policy order dated 07.06.2020 passed by the State Government is an administrative order and it was passed without exercise of the power conferred under Entry 25 of the Concurrent List of the Seventh Schedule of the Constitution of India. Therefore, the condition of 100 bedded own hospital in policy order dated 07.06.2022 which has changed the criteria, has not been added as a supplementary condition, as rightly observed by the learned Single Judge in the impugned order. 12.2. This Court also observes that even the policy dated 07.06.2022 was introduced in accordance with Entry 25 of Concurrent List of the Seventh Schedule in the Constitution of India, and it was in repugnance with the Law enacted by the Central Legislature, and thus, the law enacted by the State Legislature on the subject is not having an overriding effect. 13. This Court is conscious of the judgments rendered by the Hon’ble Apex Court in cases of State of T.N. & Ors. Vs. Adhiyaman Education & Research Institute & Ors. (Supra) and Preeti Srivastava & Ors. Vs. State of Madhya Pradesh & Ors. (1999) 7 SCC 120 . Relevant portions of the said judgments are reproduced as hereunder: Adhiyaman Education & Research Institution & Ors (Supra): “43. What emerges from the above discussion is as follows: [i] The expression “coordination” used in Entry 66 of the Union List of the Seventh Schedule to the Constitution does not merely mean evaluation. It means harmonisation with a view to forge a uniform pattern for a concerted action according to a certain design, scheme or plan of development. It, therefore, includes action not only for removal of disparities in standards but also for preventing the occurrence of such disparities. It would, therefore, also include power to do all things which are necessary to prevent what would make “coordination” either impossible or difficult. This power is absolute and unconditional and in the absence of any valid compelling reasons, it must be given its full effect according to its plain and express intention. It would, therefore, also include power to do all things which are necessary to prevent what would make “coordination” either impossible or difficult. This power is absolute and unconditional and in the absence of any valid compelling reasons, it must be given its full effect according to its plain and express intention. [ii] To the extent that the State legislation is in conflict with the Central legislation though the former is purported to have been made under Entry 25 of the Concurrent List but in effect encroaches upon legislation including subordinate legislation made by the center under Entry 25 of the Concurrent List or to give effect to Entry 66 of the Union List, it would be void and inoperative. [iii] If there is a conflict between the two legislations, unless the State legislation is saved by the provisions of the main part of Clause [2] of Article 254, the State legislation being repugnant to the Central legislation, the same would be inoperative. [iv] Whether the State law encroaches upon Entry 66 of the Union List or is repugnant to the law made by the center under Entry 25 of the Concurrent List, will have to be determined by the examination of the two laws and will depend upon the facts of each case. [v] When there are more applicants than the available situations/seats, the State authority is not prevented from laying down higher standards or qualifications than those laid down by the center or the Central authority to short-list the applicants. When the State authority does so, it does not encroach upon Entry 66 of the Union List or make a law which is repugnant to the Central law. [vi] However, when the situations/ seats are available and the State authorities deny an applicant the same on the ground that the applicant is not qualified according to its standards or qualifications, as the case may be, although the applicant satisfies the standards or qualifications laid down by the Central law, they act unconstitutionally. So also when the State authorities derecognise or disaffiliate an institution for not satisfying the standards or requirement laid down by them, although it satisfied the norms and requirements laid down by the central authority, the State authorities act illegally. “ Preeti Srivastava & Ors. (supra): “35. So also when the State authorities derecognise or disaffiliate an institution for not satisfying the standards or requirement laid down by them, although it satisfied the norms and requirements laid down by the central authority, the State authorities act illegally. “ Preeti Srivastava & Ors. (supra): “35. The legislative competence of Parliament and the legislatures of the States to make laws under Article 246 is regulated by the VIIth Schedule to the Constitution. In the VIIth Schedule as originally in force, Entry 11 of List II gave to the State an exclusive power to legislate on “education including universities, subject to the provisions of Entries 63, 64, 65 and 66 of List I and Entry 25 of List III.” Entry 11 of List II was deleted and Entry 25 of List III was amended with effect from 3-1-1976 as a result of the Constitution 42nd Amendment Act of 1976. The present Entry 25 in the Concurrent List is as follows: “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.” Entry 25 is subject, inter-alia, to Entry 66 of List I. Entry 66 of List I is as follows: “66. Coordination and determination of standards in institutions for higher education or research and scientific and technical institutions.” 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. 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.” 14. This Court further observes that both the Union Government and State Government has a duty to maintain the high standards of education in every field, particularly, in the field of medical education. The Union Government in the Regulations of 2020 prescribed the condition of 100 bedded parent/own hospital for every Nursing Institutions/Colleges in the country and it is uniformly applicable to all Nursing Institutions/Colleges in the country, which shows uniformity in the standards of medical education in the entire country. 14.1. This Court also observes that the State Government imposed the condition of 100 bedded own hospital in policy dated 07.06.2022, which is not a supplementary condition, and it is overreach of the Union Government’s existing condition on the subject. This Court further observes that if the condition in question imposed by the State Government is allowed to continue, then it would amount to a clear discrimination between the Nursing Institutions/Colleges of the State of the Rajasthan and Nursing Institution/Colleges of the other States of the country, which is not permissible in law. 15. This Court further observes that the State Government has sufficient power to regulate the Nursing Institutions/ Colleges in the State and as observed by the learned Single Judge in the impugned order, the State Government has got ample power to order stoppage/closure of the ineligible nursing institutions/colleges, who are being run without following the procedure prescribed in law. 16. 15. This Court further observes that the State Government has sufficient power to regulate the Nursing Institutions/ Colleges in the State and as observed by the learned Single Judge in the impugned order, the State Government has got ample power to order stoppage/closure of the ineligible nursing institutions/colleges, who are being run without following the procedure prescribed in law. 16. This Court also observes that the various eligible Nursing Institutions/Colleges who are completely following all the guidelines as well as conditions prescribed under the law, cannot be deprived of grant of NOC for establishment of new institution or enhancement of seats in the existing institutions, on count of the condition in question pertaining to 100 bedded own hospital as introduced by the State Government vide policy order dated 07.06.2022. 17. This Court further observes that there is no requirement of the condition in question as mentioned in policy dated 07.06.2022 in view of the fact that the Union Government introduced the condition of 100 bedded parent/own hospital mentioned in the Regulations of 2020, for grant of NOC for establishment of new Nursing Institutions/Colleges or enhancement of the seats in exiting the institutions. 18. This Court also observes that the learned Single Judge in the impugned order has taken into due consideration all the relevant aspects of the case as also the precedent laws governing the field. 19. In light of the aforesaid observations and looking into the factual matrix of the present case, this Court does not find it a fit case so as to grant any relief to the appellant in the present appeals. 20. Consequently, the present appeals are dismissed.” 2. In light of the aforequoted judgment, the present appeals are also dismissed in the same terms. All pending applications, if any, stand disposed of.