wp-110-20(J).

odt 1/23

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH, NAGPUR

WRIT PETITION NO. 110 OF 2020

Dr. Keshav Baliram Hedgewar Paryayi,

Shiksha Mandal, Samta Nagar, Wardha
Tq. & Distt. Wardha
through its Main Trustee,
Amol Ajay Shirvastav : PETITIONER

...VERSUS...

1. The State of Maharashtra,

through Principal Secretary,
Medical Education and Drugs
Department, 9th Floor, G.T. Hospital
Sankul, Lokmanya Tilak Marg,
Mumbai 400 001.
2. The Maharashtra State Board of Nursing
and Para Medical Education, through its
Registrar, 4th Floor, St. George’s Hospital
Compound, P.D Melo Road, Near CSMT,
Mumbai 400 001
3. Indian Nursing Council,
through its Secretary, 8th Floor,
NBCC center, Plot No. 2,
Community Center, Okhla Phase I,
New Delhi – 110020 : RESPONDENTS
=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
Mr. Firdoz Mirza, Advocate for the petitioner.
Mr. [Link], AGP for the respondent no. 1.
Mr. [Link], Advocate for the respondent no.2
Ms. Gauri Venkatraman, Advocate for the respondent no.3.
=-=-=-=-=--=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
CORAM : SUNIL B. SHUKRE AND
ANIL [Link], JJ.

RESERVED ON : 20th AUGUST, 2020.

PRONOUNCED ON : 23rd SEPTEMBER, 2020.

JUDGMENT : (Per : Anil S. Kilor, J.)

::: Uploaded on - 25/09/2020 ::: Downloaded on - 28/09/2020 15:49:16 :::

 wp-110-20(J).odt 2/23

A proposal of the petitioner to start General

Nursing and Midwifery (GNM) course at Wardha, has been

rejected by the respondent State Board of Nursing vide its

communication dated 31st December 2019, in view of the

Notifications dated 28th February 2019 and 14th March 2019,

issued by the Indian Nursing Council, informing that the

Council has resolved to phase out ‘GNM’ course from the year

2020-21 in compliance with the ‘National Health Policy 2017’.

The communication of the State Board dated 31 st December

2019 and notifications issued by the Council, dated 28 th

February 2019 and 14th March 2019, have been questioned in

the present petition by the petitioner.

2. Heard Shri Firdos Mirza, learned counsel for the

petitioner, Ms. Gauri Venkatraman, learned counsel for the

respondent No. 3 and Shri Amit Madiwale, learned Asst.

Government Pleader for respondent Nos.1 and 2.

3. Shri Firdoz Mirza, learned counsel for the

petitioner submits that the impugned notifications / orders

dated Dated 28th February, 2019, 14th March, 2019 and 19th

September, 2019 issued by the respondent Council cannot

override or control the provisions of the Maharashtra State

::: Uploaded on - 25/09/2020 ::: Downloaded on - 28/09/2020 15:49:16 :::

 wp-110-20(J).odt 3/23

Board of Nursing and Paramedical Education Act, 2013 (the

Act, 2013).

4. He further submits that the letters of Indian

Nursing Council cannot be treated as legal documents as they

have no legal force in absence of a publication of any such

declaration in Official Gazette as required under the

provisions of law and thus acting upon the same while

rejecting the proposal of the petitioner, is illegal.

5. Shri Mirza, learned counsel for the petitioner

further argues that it is a settled principal of law that if the

manner of doing a particular act is prescribed under any

statute, the act must be done in that manner or not at all. It is

submitted that the action on the part of the respondent-Board,

rejecting the proposal of the petitioner is contrary to mandate

of Section 28 of the Act, 2013.

6. Shri Firdos Mirza, learned counsel for the

petitioner further argues that the respondent Indian Nursing

Council has no authority to grant recognition to the nursing

courses, but the said power lies with the State Board and

therefore any direction issued by the Nursing Council is not

binding on the respondent, State Board. For this purpose he

::: Uploaded on - 25/09/2020 ::: Downloaded on - 28/09/2020 15:49:16 :::

 wp-110-20(J).odt 4/23

has relied upon the judgment of this Court dated 9 th October

2017 passed in Writ Petition No. 11260 of 2017 in the case of

Private Nursing School College Management Association Vrs.

Union of India and others.

7. It is submitted that for the year 2019-2020

permissions have been granted to some colleges to start GNM

courses, by the State Board whereas on the other hand it has

been denied to the petitioner citing the resolution of the

Council, relating to phasing out GNM course from 2020-21.

Hence according to him it is in violation of Article 14 of the

Constitution of India.

8. Per contra, Shri A.M. Madiwale, learned Assistant

Government Pleader points out that the instructions or the

directions issued by the Council which are based on’ National

Health Policy 2017’, are binding on the State Board and the

State Board has rightly acted upon the direction of the Indian

Nursing Council. Thus, he submits that no illegality has been

committed by the respondent-Board in rejecting the proposal

of the petitioner.

9. Ms. Gauri Venkatraman, learned counsel for the

respondent no.3, submits that the petitioner has no legal right

::: Uploaded on - 25/09/2020 ::: Downloaded on - 28/09/2020 15:49:16 :::

 wp-110-20(J).odt 5/23

under the law to start new GNM course, whereas it is the

discretion of the State Board whether to grant such

permission or not, under the provision of the Act, 2013.

10. She further draws attention of this Court to the

provisions of the Act, 1947 and thereby points out that in

view of Section 10 of the Act, 1947 the power to grant

recognition to qualifications lies with the Council and under

Section 14 the Council is empowered to withdraw

recognition. It is submitted that the decision of grant of

recognitions or withdrawal of recognition, is binding on the

State Board, even as per the provision of the Act, 2013.

11. She points out that, the role of statutory expert

bodies on education and the role of the courts in such matters

are well defined. Wherever a question of educational policy

or an issue involving academic matter arises, it is a settled law

that the courts keep their hands off. In support of her

contention she has placed reliance on the judgments of the

Hon’ble the Supreme Court of India in a case of All India

Council of Technical Education Vrs. Surinder Kumar Dhawan

and others reported in 2009 (11) SCC 726 and in a case

::: Uploaded on - 25/09/2020 ::: Downloaded on - 28/09/2020 15:49:16 :::

 wp-110-20(J).odt 6/23

Sanchit Bansal and another Vrs. Joint Admission Board and

others reported in 2012 (1) SCC 157.

12. She further points out that rejection of a proposal

of the petitioner was in pursuance to the communication

issued by the Government of India, Ministry of Health & F.W

(Nursing Section) dated 5th October, 2017, focusing the

National Health Policy 2017. Thus, showing any indulgence

in the present matter would amount to interference in the

‘National Health Policy-2017’ or the policy decision of the

Government of India.

13. She lastly submits that, the Council vide

impugned notifications issued an advisory to the State

Government, however there was no declaration about actual

withdrawal of recognition to GNM course, therefore, Gazette

publication is unwarranted and not required. Arguing so she

prays for dismissal of the petition.

14. To consider the rival contentions of the parties,

we have carefully perused the record and also gone through

the relevant provisions of the Act, 1947 and the Act, 2013 and

also the judgments cited by the rival parties.

::: Uploaded on - 25/09/2020 ::: Downloaded on - 28/09/2020 15:49:16 :::

 wp-110-20(J).odt 7/23

15. A question that emanates for our consideration

against the backdrop of aforementioned arguments, is as

follows:-

“In absence of a publication in Official Gazette about

withdrawal of recognition to GNM course by the
Council, whether the impugned notifications dated
28th February, 2019 and 14th March, 2019, issued by
the Council in pursuance to the letter issued by the
Government of India, Ministry of Health & F.W.
(Nursing Section), dated 5th October, 2017 which is
based on ‘National Health Policy-2017’, are binding
and obligatory for the Maharashtra State Board”

16. In the case at hand the State Board published

perspective plan showing the requirement of one Nursing

college and one college of General Nursing and Midwifery

(GNM) course for Wardha District. The petitioner being

interested in starting GNM course at Wardha from the

academic year 2018-19 submitted a proposal to the State

Board, in pursuance to the said perspective plan.

17. Lapse in carrying out inspection by the Board

drove the petitioner to file a Writ Petition no. 6327 of 2019

seeking writ to carry out inspection by the State Board.

Consequently, the inspection was carried out because of

::: Uploaded on - 25/09/2020 ::: Downloaded on - 28/09/2020 15:49:16 :::

 wp-110-20(J).odt 8/23

Court’s direction. However, the proposal of the petitioner for

grant of permission to start GNM course has been turned

down vide communication dated 31st December, 2019, citing

the Indian Nursing Council’s notifications dated 28th February,

2019 and 14th March, 2019 and communication dated 19 th

September 2019 as a basis for said rejection.

18. The letter of rejection of proposal of the

petitioner dated 31st December, 2019 reads thus:

^^fo”k; % th- ,u- ,e- vH;kldzekl ekU;rk feG.;kckcr-

lanHkZ %1½ izca/kd] egkjk”Vªª jkT; ‘kqJq”kk o ijkoS|d f’k{k.k eaMG]
eaqcbZ ;kapk fn- 16-12-2019 jksthpk [Link] vgoky-
2½ ek- mPp U;k;ky;] eaqcbZ] [kaMihB ukxiwj ;kaps fjV ;kfpdk
dz- 6327@2019 P;k vuq”kaxkus fn-09-12-2019 jksthps
vkns’k-
3½ Hkkjrh; ifjp;kZ ifj”knsps i= fn-19-09-2019-
4½ Hkkjrh; ifjp;kZ ifj”knsps i= fn-14-03-2019-
5½ Hkkjrh; ifjp;kZ ifj”knsps i= fn-28-02-2019-
egksn;]
vkiyk ,- ,u- ,e- o th- ,u- ,e- vH;kldzekl ekU;rk
fEkG.;kckcrpk izLrko fn- 28-08-2018 jksthP;k vkiY;k i=kUo;s
egkjk”Vª jkT; ‘kqJq”kk o ijkoS|d f’k{k.k eaMG] eaqcbZ ;kauk izkIr >kyk
gksrk- lnj izLrkokP;k vuq”kaxkus fjV ;kfpdk dz-6327@2019 vUo;s
ek- mPp U;k;ky;] eaqcbZ] [kaMihB ukxiwj ;kauh lanHkZ dz-2 [Link]
vkns’k ikfjr dsys vkgsr- lnj vkns’kkl vuql:u lanHkZ dz-
1 ;sFkhy i=kUo;s egkjk”Vª jkT; ‘kqJq”kk o ijkoS|d f’k{k.k eaMG] eaqcbZ
;kauh [Link] vgoky ‘kklukl lknj dsyk vkgs-
rFkkih] Hkkjrh; ifjp;kZ ifj”knsps lanHkZ dz-3] 4 o 5 ;sFkhy
i=krhy funZs’kkP;k ik’oZHkqehoj vkiY;k laLFksP;k th- ,u- ,e-
vH;kldzekP;k uohu egkfo|ky;kl ekU;rk ns.;kckcrpk izLrko
vekU; dj.;kr ;sr vkgs-**

19. At this juncture it is pertinent to consider the

background and the reasons behind issuance of the impugned

notifications and communications by the Council, which are

::: Uploaded on - 25/09/2020 ::: Downloaded on - 28/09/2020 15:49:16 :::

 wp-110-20(J).odt 9/23

referred in the above communication dated 31 st December,

2019.

20. After the National Health Policy 1983 and 2003

in the changed current context, the health priority changed,

therefore, to reach everyone in a comprehensive integrated

way to move towards wellness, the National Health Policy,

2017 was framed.

21. The National Health Policy, 2017 is being

monitored closely by Prime Minister’s Office, Ministry of

Health & F.W. (Nursing Section), Government of India vide

communication dated 5th October, 2017, apprising certain

actions decided to be taken through Indian Nursing Council,

to the President of Indian Nursing Council.

22. Relevant portion, for the purpose of this petition

of a communication dated 5th October, 2017 issued by

Government of India, Ministry of Health & F.W. (Nursing

Section) reads thus:

To,
The President,
Indian Nursing Council,
New Delhi- 110020

“As you may be aware, the implementation of National Health

Policy, 2017 is being monitored closely by the Prime Minister’s

::: Uploaded on - 25/09/2020 ::: Downloaded on - 28/09/2020 15:49:16 :::

 wp-110-20(J).odt 10/23

Office. The key initiatives in the implementation framework on

which action is required to be taken by Indian Nursing Council
is as listed below :

“i. Single entry level for Nursing : To ensure the quality of

nursing education, the implementation framework seeks to
merge GNM schools with [Link]. (N) and have a single entry
level qualification as [Link].(N) for nurses by redesigning the
[Link]. curriculum as practical based and by phasing away the
GNM course. INC is required to take steps to phase out GNM
courses. Timeline : 5 years, by March, 2022.
ii ….
iii ….
iv ….
v ….
vi ….

2. You are requested to initiate necessary steps to complete

the above works in a time bound manner and ensure that
timelines are strictly adhered to. It may please be ensured that
the updated status of implementation of the NHP is required to
be furnished to this Ministry by the last day of each month
positively.”

23. In the above letter one of the actions which was

guided to be taken by the Indian Nursing Council was relating

to ‘Single Entry Level for Nursing’ to ensure the quality of

nursing education and for which it was decided to merge

GMN Schools with [Link].(N) and have a ‘single entry level’

qualification as [Link].(N).

24. Consequently, the Indian Nursing Council issued

impugned Notifications dated 28th February 2019 and 14th

March 2019, apprising the State Government’s about the

resolution passed on 2nd December, 2018 in the Governing

::: Uploaded on - 25/09/2020 ::: Downloaded on - 28/09/2020 15:49:16 :::

 wp-110-20(J).odt 11/23

Body meeting of Indian Nursing Council pertaining to Phasing

away of existing GNM course by the year 2020-21. The

notifications read thus:

Notification

28th February, 2019

Sub : Resolutions approved by Governing Body in the

Meeting held on 2.12.2018-Conversion of School of
Nursing to College of Nursing – reg.

In National Health Policy 2017, monthly report to

PMO one of the key initiative in the implementation
framework is Single Entry Level for Nursing:- To ensure
the quality of nursing education, the implementation
framework seeks to merge GNM Schools with [Link].(N) and
have a single entry level qualification as [Link].(N) for
nurses by redesigning the [Link]. curriculum as practical
based and by phasing away the GNM course.

Keeping in view the above the Council has resolved

that the existing GNMs shall be phased out by the year
2020-21 and shall be converted into College of Nursing.
The various modalities are being worked out which will be
informed in due course of time.”

------------

Notification 14th March 2019

Sub : Single Entry Level for Nursing – Phasing out of

GNM programme.

In continuation of Notification [Link].I-5/2018-INC dated

28th February, 2019 on the subject noted above, it is
further clarified that:

(i) Last admission year for GNM Training

programme will be 2020-2021 academic year.
(ii) No admission will be made to GNM programme
in 2021-2022 academic year and thereafter.

::: Uploaded on - 25/09/2020 ::: Downloaded on - 28/09/2020 15:49:16 :::

 wp-110-20(J).odt 12/23

(iii) GNM trainees who are admitted in and prior to

2020-21 will continue their batch till they
complete the programme.

Vide earlier Notification of INC dated 28th February,

2019, it is stated that “The existing GNM’s shall be
phased out by the year 2020-21” the same should be
read as the GNM Training Programme shall be phased
out by the year 2020-21.

25. There is no doubt that the ‘National Health Policy

2017’, had given cause to the Ministry of Health and F.W.,

Government of India to issue communication dated 5 th October,

2017, which became a reason for passing of a resolution dated 2 nd

December 2018 in a meeting of the Governing Body of the Council,

which further resulted into issuance of the impugned notifications

dated 28th February and 14th March 2019 and communication dated

19th September 2019 by the council. However, the question in the

matter concerned, is whether in absence of a declaration about

withdrawal of recognition to GNM course, above referred

notifications are binding on the State Board.

26. Hence after having paid attention to facts of the matter

in hand now we would examine the relevant law on the question

involved.

27. Thus, at this juncture it is germane to refer to the

relevant provisions of the Act, 1947 and the Act, 2013.

::: Uploaded on - 25/09/2020 ::: Downloaded on - 28/09/2020 15:49:16 :::

 wp-110-20(J).odt 13/23

Sections 10,14 and 15 of the Act, 1947, read thus :

Section 10: Recognition of qualifications.(1) For the purposes of

this Act, the qualifications included in [Part I of] the Schedule
shall be recognised qualifications, and the qualifications included
in Part II of the Schedule shall be recognised higher qualifications.

(2) Any authority within the [States]which, being

recognised by the [State] Government [in consultation
with the State Council, if any] for the purpose of granting
any qualification, grants a qualification in general
nursing, midwifery, [auxiliary nursing midwifery], health
visiting or public health nursing, not included in the
Schedule may apply to the Council to have such
qualification recognised, 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)…….
(4)…….

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) …….
(2) ……
(3) …….
(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.

Section 15: Mode of declarations. (1) All declarations

under section 10 or section 14 shall be made by resolution
passed at a meeting of theCouncil called for the purpose,
and shall forthwith be published in the Official Gazette.
(2)….

::: Uploaded on - 25/09/2020 ::: Downloaded on - 28/09/2020 15:49:16 :::

 wp-110-20(J).odt 14/23

28. Now moving to sections Section 28 of the Act, 2013, which

reads thus:

Section 28.(1): The Board shall grant permission to

start new nursing and Paramedical Institution by
observing the standards laid down under the Indian
Nursing Act, 1947 and the directions issued by the
Central Government regarding Paramedical Education
as per the provisions specified under this Section.

(2)………
(3)………
(4)……….
(5) Out of the applications recommended by the Board,
the Government may grant permission to such
institution as it may consider right and proper in its
absolute discretion, taking into account the
Government’s budgetary resource, the suitability of the
management seeking permission to open new
institutions and the State level priorities with regard to
location of institutions for Nursing and Paramedical
Education.

(6)……

29. In summary the import of the above referred

provisions, is as follows :

a) Under the provisions of sections 10 and 14 of the

Act, 1947, the council is empowered to grant or
withdraw recognition respectively, subject to
publishing such declaration as per section 15 of the
Act, 1947, in the Official Gazette.
b) Grant of permission to start new institute under
section 28, is discretionary, taking into account,
inter-alia, the suitability of the management
seeking permission to open new institution, by
observing the standards laid down under the Act,

::: Uploaded on - 25/09/2020 ::: Downloaded on - 28/09/2020 15:49:16 :::

 wp-110-20(J).odt 15/23

1947 and directions issued by the central

Government regarding Paramedical Education.

30. The Hon’ble the Supreme Court of India in the

case of Rajendra Agricultural University v. Ashok Kumar

Prasad, (2010) 1 SCC 730, has held thus:

“17. Any person interested in appointment in the

university service as a teacher or non-teaching staff or
officer is entitled to know the qualifications prescribed
for the post and the manner/mode of selection and
appointment. The students or prospective students are
entitled to know the fees which may be charged by the
university. The Statute made for maintenance of
discipline amongst the students concerns the large
body of the student community which keeps changing
periodically. If the Statutes made on these topics are
not published in the Official Gazette, the persons
concerned may never come to know about them.
Therefore, the provision contained in Section 36(4)
requiring publication of Statutes in the Official Gazette,
which applies to all Statutes framed by the University,
has to be treated mandatory. The fact that a particular
Statute may not concern the general public, but may
affect only a specified class of employees, is not a
ground to exclude the applicability of the mandatory
requirement of publication in the Official Gazette, to
that Statute in the absence of an exception in Section
36(4) of the Act.
18. The question can be looked at from another
perspective also. The contentions urged by the
respondents may be good grounds for the legislature to
conclude that there need not be a provision in the Act
for publication in the Official Gazette, when they relate
to a small section of employees of the University and
consequently, amend Section 36(4) providing for a
simpler mode of publication in such cases. But the
contentions are not relevant grounds for holding that a
statutorily enacted mandatory requirement relating to
publication in the Official Gazette, is directory. The
respondents cannot by importing the reasons for

::: Uploaded on - 25/09/2020 ::: Downloaded on - 28/09/2020 15:49:16 :::

 wp-110-20(J).odt 16/23

making a statutory provision, or the object of making a

statutory provision, attempt to defeat the specific and
unambiguous mandatory requirements of that statutory
provision.
19. As noticed above, several reasons might have
contributed to making of a statutory provision
providing for publication of all Statutes in the Official
Gazette. All those reasons may not apply or exist in
regard to making of an individual statute. But once the
law lays down that publication of a Statute in the
Official Gazette is a part of the process of making a
statute, the object of making such a provision for
publication recedes into the background and becomes
irrelevant, and on the other hand, fulfilment of the
requirement to make public the Statute by publication
in the Official Gazette becomes mandatory and
binding.

21. In B.K. Srinivasan v. State of Karnataka this Court

explained why publication in the gazette was
mandatory and necessary in regard to subordinate
legislations: (SCC p. 672, para 15)
“15. There can be no doubt about the
proposition that where a law, whether
parliamentary or subordinate, demands
compliance, those that are governed must be
notified directly and reliably of the law and
all changes and additions made to it by
various processes. Whether law is viewed
from the standpoint of the ‘conscientious
good man’ seeking to abide by the law or
from the standpoint of Justice Holmes’
‘unconscientious bad man’ seeking to avoid
the law, law must be known, that is to say, it
must be so made that it can be known. We
know that delegated or subordinate
legislation is all-pervasive and that there is
hardly any field of activity where governance
by delegated or subordinate legislative
powers is not as important if not more
important, than governance by parliamentary
legislation. But unlike parliamentary
legislation which is publicly made, delegated
or subordinate legislation is often made
unobtrusively in the chambers of a Minister, a
Secretary to the Government or other official

::: Uploaded on - 25/09/2020 ::: Downloaded on - 28/09/2020 15:49:16 :::

 wp-110-20(J).odt 17/23

dignitary. It is, therefore, necessary that

subordinate legislation, in order to take
effect, must be published or promulgated in
some suitable manner, whether such
publication or promulgation is prescribed by
the parent statute or not. It will then take
effect from the date of such publication or
promulgation. Where the parent statute
prescribes the mode of publication or
promulgation that mode must be followed.”
24. This Court in Bhadrachalam case held that the
requirement under Section 11 of the Act relating to
publication of the government order in the gazette,
was mandatory and that where an enactment requires
an act (making a government order) to be done by the
Government only in the manner prescribed therein,
then non-compliance with the mandatory statutory
requirement will make the act (making of a
government order) invalid and consequently, the
government order cannot be considered as a valid and
binding one, nor as a representation held out by the
Government, creating any right to seek the benefit of
that government order by invoking the principle of
promissory estoppel against the Government.”

31. Thus in the matter in hand, from the above

referred judgment it is abundantly clear that once section 15

of the Act 1947, lays down that all declarations under section

10 or section 14 shall be made by resolution passed at a

meeting of the Council called for the purpose, and shall

forthwith be published in the Official Gazette, the said

requirement relating to publication of a declaration in Official

Gazette, is mandatory.

::: Uploaded on - 25/09/2020 ::: Downloaded on - 28/09/2020 15:49:16 :::

 wp-110-20(J).odt 18/23

32. It is a well settled law that where an enactment

requires an act to be done in the manner prescribed therein,

then non-compliance with the mandatory statutory

requirement will make the act invalid and consequently, such

act cannot be considered as a valid and binding one.

33. In the present matter admittedly no declaration

under section 14 of the Act, 1947, withdrawing recognition of

qualification, GNM course has been published in the Official

Gazette as mandated under section 15 of the Act, 1947.

34. A decision of the Council to phase out the GNM

course from the year 2020-21 or any notification issued in

that regard for the information of public in general, would not

acquire the element of operativeness and enforceability, unless

the same is published in the Official Gazette as required in the

law. And in absence of such publication in Official Gazette, it

can be said that the process of phasing out GNM Course has

commenced or is going on.

35. The Council here in the present matter issued two

notifications dated 28th February, 2019 and 14 th March, 2019

::: Uploaded on - 25/09/2020 ::: Downloaded on - 28/09/2020 15:49:16 :::

 wp-110-20(J).odt 19/23

in pursuance of a resolution of the Governing Body of the

Council, resolving to phase out the GNM course from 2020-

21. However said resolution or notification has not yet been

published in the Official Gazette. The Hon’ble the Supreme

Court of India in a case of Subhash Ramkumar Bind v. State

of Maharashtra, (2003) 1 SCC 506, has observed thus

Notification in common English acceptation means

and implies a formal announcement of a legally
relevant fact and in the event of a statute speaking of a
notification being published in the Official Gazette, the
same cannot but mean a notification published by the
authority of law in the Official Gazette

36. It is pertinent to note that even it is the case of

the Council that the nature of impugned notifications, is only

an advisory issued to the State Government intimating the

policy decision.

37. The Council in its written notes of argument at

page 14, admits in clear terms that on the date when the

impugned notifications were issued, there was no declaration

about actual withdrawal of recognition to GNM course and

the existing GNM schools are still conducting the said course.

38. In the light of discussions made above, we are of

the firm view that in absence of a publication in Official

::: Uploaded on - 25/09/2020 ::: Downloaded on - 28/09/2020 15:49:16 :::

 wp-110-20(J).odt 20/23

Gazette about withdrawal of recognition to GNM course by

the Council, the impugned notifications dated 28 th February,

2019 and 14th March, 2019, issued by the Council in

pursuance to the letter issued by the Government of India,

Ministry of Health & F.W. (Nursing Section), dated 5 th October,

2017 which was based on ‘National Health Policy-2017’, are

not binding and obligatory for the Maharashtra State Board.

39. Consequently rejection of proposal of the

petitioner to start new GNM course, vide communication

dated 31st December 2019, issued by the respondent State

Board, on the ground of issuance of impugned notification by

the Council, is not in conformity with the provisions of the

Act, 1947 and also the Act, 2013 and therefore, the same

needs to be set aside.

40. We are well conscious about a settled law

position that the role of statutory expert bodies and role of

Courts are well defined by a simple rule that if it is a question

of educational policy or an issue involving academic matter,

the Courts are to keep their hands off, as the Courts are

neither equipped nor have the academic or technical

::: Uploaded on - 25/09/2020 ::: Downloaded on - 28/09/2020 15:49:16 :::

 wp-110-20(J).odt 21/23

background to substitute themselves in place of statutory

professional technical bodies and take decisions in academic

matters involving standards and quality of technical

education.

41. In the present matter admittedly the petitioner

has not questioned the legality or correctness of the ‘National

Health Policy’ or of the communication dated 5th October

2018, issued by Government of India addressed to the

Council. In the said backdrop we reject the contention of the

learned counsel for the respondent No. 3 that showing any

indulgence in this matter amounts to interference in ‘National

Health Policy’ or policy of the Government of India. It is made

clear that we have not commented anything about the

‘National Health Policy 2017’ or any Government of India’s

policy, in this matter.

42. For the above reasons the judgments in the case

of All India Council of Technical Education Vrs. Surinder

Kumar Dhawan and others (supra) and in the case of Sanchit

Bansal and another Vrs. Joint Admission Board and others

(supra) are of no help to the respondent No. 3.

::: Uploaded on - 25/09/2020 ::: Downloaded on - 28/09/2020 15:49:16 :::

 wp-110-20(J).odt 22/23

43. Now moving to the contention of the petitioner

that the Respondent-Nursing Council has no authority to grant

recognition to the nursing courses but the said power lies with

the State Board and therefore any direction issued by the

Nursing Council is not binding on the Respondent-State

Board. In the present matter, the issue is in respect of grant

or withdrawal of recognition to qualification GNM Course and

not the issue of granting recognition by the State Board to the

institute to start college of GNM course. Therefore, the said

contention of the petitioner cannot be accepted and for the

said reason the judgment cited by the petitioner in the case of

Private Nursing School College Management Association Vrs.

Union of India and others (supra) is not applicable to the

present case.

44. Further as regards arguments advanced by the

learned counsel for the petitioner as regards violation of

Article 14 of the Constitution of India, we are of the opinion

that in view of the observations made above, we do not find it

necessary to go into the said contention of the petitioner.

45. Accordingly, the writ petition is allowed.

::: Uploaded on - 25/09/2020 ::: Downloaded on - 28/09/2020 15:49:16 :::

 wp-110-20(J).odt 23/23

46. The impugned communication dated 31 st

December 2019, issued by the State Board, is set aside and

the respondent No. 2, State Board is directed to consider the

proposal of the petitioner to start the GNM course at Wardha

from the year 2020-21, on its own merit. It is further made

clear that unless the decision is published in Official Gazette

as provided under section 15 of the Act, 1947, about

derecognition of qualification to GNM course, it shall be

treated that the said course is having recognition of the

Council.

No order as to costs.

JUDGE JUDGE
sknair

::: Uploaded on - 25/09/2020 ::: Downloaded on - 28/09/2020 15:49:16 :::