Sanjeev Kumar, J. - This petition by eight institutes imparting Nursing and Paramedical education is primarily directed against the Notification of Jammu and Kashmir State Paramedical/Nursing Council issued vide its No.JSNC-18/106/662-673 dated 17.10.2018 whereby the State Nursing Council has prescribed the required qualification for admission to ANM and GNM Courses as "10+2 with Science". The short grievance projected by the petitioner in this petition is that the petitioner institutes have the requisite recognition from the Indian Nursing Council in terms of the provisions of Indian Nursing Council Act, 1947 (hereinafter referred to as "the Central Act") and the Regulation framed thereunder. These institutions have further been affiliated to the State Nursing Council constituted under the Jammu and Kashmir Nursing Council Act, 2012 (hereinafter referred to as " the of 2012"). They claim that the qualification for the courses of ANM and GNM, which are being conducted by them, as prescribed under the Central Act is 10+2 in Arts (Mathematics, Physics, Chemistry, Biology, Biotechnology etc.). It is further case of the petitioner institutes that for all purposes including prescribing of syllabus of all these courses and other allied matters relating to admissions, the State has been following the provisions of the Central Act and the Regulations framed thereunder. It is, thus, submitted that in absence of separate Regulations having been framed by the Nursing Council under the of 2012 and in view of consistent practice of the State Nursing Council to follow all the rules and regulations of the Indian Nursing Council, the prescription of the qualification 10+2 with Science in terms of the impugned Notification, is not permissible.

2. The respondents through Vice President, Jammu and Kashmir State Paramedical Council, Govt. Medical College, Jammu have filed their reply affidavit contending therein that the State Government in terms of Govt. Order No.357-HME of 2007 dated 24.05.2007 has laid down the guidelines to be followed by paramedical Schools/Institutes in making selection for admission to various Para Medical Training Courses, which inter alia provides that the eligibility for admission to paramedical training courses besides others is 10+2 with Science subject. It is further pleaded that the petitioner institutes at the time of providing affiliation with the Jammu and Kashmir Nursing Council, were clearly made aware that the affiliation is subject to the petitioner complying with the direction of the Council on the subject to be conveyed later. The Jammu and Kashmir Nursing Council while issuing admission/registration notice impugned, made it clear to the petitioner institutes that the qualification for admission to ANM and GNM courses would be 10+2 with Science and, therefore, the petitioner institutes were not supposed to admit the candidates, who were not possessing the requisite qualification and if they have done so, it is at their own peril.

3. Heard learned counsel for the parties and perused the record.

4. It is not in dispute that the petitioner institutes have the recognition from the Indian Nursing Council constituted under the Central Act which Act was not applicable to the State of Jammu and Kashmir till coming into force of the Jammu and Kashmir Re-organization Act, 2019. On 17.10.2018, when impugned admission notice was issued, the Paramedical/Nursing institutes established in the State of Jammu and Kashmir were governed by the Jammu and Kashmir Nursing Council Act, 2012 and not by the Central Act and were, thus, required to seek recognition from the State Nursing Council. Equally true it is that the prescription of minimum qualification for admission to these courses was in the exclusive domain of the State Nursing Council. The recognition of the petitioner institutes having been established in the erstwhile State of Jammu and Kashmir with the Central Nursing Council, is, on the face of it not permissible. Sub Section 2 of the Section 1 of Indian Nursing Council Act, 1947 provides as under:-

"It extends to whole of the India except State of Jammu and Kashmir"

5. If that be the position as it was, it is beyond comprehension of this Court as to how these institutes carrying the recognition from the Indian Nursing Council were permitted to impart different Paramedical and Nursing courses to the students on the territory of erstwhile State of Jammu and Kashmir. The position, however, changed with the coming into force of the Jammu and Kashmir Reorganization Act, 2019 w.e.f. 30.10.2019. The erstwhile State of Jammu and Kashmir was bifurcated in Union Territory of Jammu and Kashmir and Union Territory of Ladakh. In terms of Section 95 of the Reorganization Act, 2019 apart from many others Central Legislations, Indian Nursing Council Act, 1947 was also made applicable to the twin Union Territories carved out of the State of Jammu and Kashmir.

6. Viewed from this angle, it can safely be held that in the year 2018 when the admission for the Session 2018-2019 were set in motion, these institutes had no recognition from the State Nursing Council and their recognition by the Indian Nursing Council was de hors the law. As a necessary corollary, the affiliation granted by the State Nursing Council to the petitioner institutes in the year 2018 was also not valid in law. The State Nursing Council constituted under the Jammu and Kashmir Nursing Council Act, 2012 has no power to affiliate the Paramedical or Nursing institutes unless it has recognition under the State Act. Sections 19 and 20 of theof 2012 make the things abundantly clear and for expediency reproduced hereunder:-

"19. Establishment of Training Institutions.

(1)No person shall establish any institution for training nurses, midwives or health visitors and to conduct examination for the qualifying certificates of such courses except with the prior approval of the Government:

Provided that the approval of the Government under this sub-section shall not be given unless the Council make a recommendation to that effect.

(2)Subject to the provisions of the and the rules made thereunder, every application for approval under sub-section (1) shall be made in such form, on payment of such fee and in such manner as may be prescribed in the regulations.

(3)

20. Recognition of Institution and examination.

(1) The Government shall, on the recommendation of the Council, by a notification, specify the institutions which are authorized to hold qualifying examinations and grant certificates, diploma or degree for the purposes of the.

(2) The institution(s) registered under the shall maintain a website giving information about infrastructure, names and photographs of the faculty members, affiliation status, prescribed fee, attachment with the hospital for practical training to the students and such other particulars/information as may be prescribed from time to time.

7. From conjoint reading of Sections 19 and 20, it clearly transpire that no institution for training nurses, midwives or health visitors and to conduct examination for the qualifying certificates of such courses can be established by any person without the prior approval of the Government and the Government shall not give such approval unless Nursing Council constituted under the makes recommendation to that effect. Section 21 provides of inspection of such institutes whereas Section 23 lays down a provision for de-recognition. Section 35 empowers the Government to make rules and to carry out the purposes of the whereas Section 36 of theof 2012 confers powers on the Nursing Council to make Regulations laying inter alia the conditions and restrictions, which are to be complied with and the courses of training to be completed and examination to be passed by the persons applying for examination; to prescribe the syllabi for examinations to be passed by the person applying for registration; to provide for recognition of institutions competent to impart such trainings and prescribe the fees for the affiliation of institutions recognised for training of nurses, midwives and multipurpose health workers etc.

8. It is fairly conceded before me by Mr. H.A.Siddiqui, learned Sr. AAG appearing for the respondents that the Nursing Council has not so far framed any Regulation and in absence of formal regulations having been framed by the Council, the admission in these institutions recognized by the Indian Nursing Council are being regulated by issuance of guidelines and instructions by the Council.

9. Be that as it may, as noted above the respondent Nursing Council has failed to perform its statutory duties enjoined by Section 36. It has also permitted establishment of the training institutions without their being any compliance to the provisions of Chapter-IV of the of 2012. State Nursing Council appears to have treated the institutions recognised under the Central Act as the institutions automatically recognised under the of 2012 and have, thus, granted affiliation. In this imbroglio, reliance placed by the Council on the Government Order No.357-HME of 2007 dated 24.05.2007, is totally misplaced. A bare reading of the Govt. Order (supra) makes it crystal clear that it was intended to regulate the admissions to various paramedical training courses in the District Ancillary Medical Training Schools of Jammu and Srinagar Division and it was done by the Government and not by the Nursing Council. Whether or not paramedical courses would include the nursing courses may not be a point of debate in this petition for the simple reason that by establishing two separate Councils one for the paramedics under the Jammu and Kashmir Paramedical Council Act, 2014 and other for Nursing Courses under the of 2012, a distinction between two has been clearly brought out by the respondents themselves. In these circumstances, the question that needs to be determined in this petition is as to whether by prescribing 10+2 with science as the essential qualification for the nursing courses, the respondent Council has acted arbitrary or violated any statute.

10. In absence of any material and decision of the State Nursing Council on record, it is difficult for this Court to trace out the source of the prescription of 10+2 with Science as essential qualification of nursing courses. Admittedly, State Nursing Council has not framed any Regulation under Section 36 of the Act 2012 nor there is a decision by the Nursing Council to prescribe such qualification brought to the notice of this Court.

11. From the perusal of various documents on record and the averments made by the petitioner institutes in their writ petition, which have gone un-rebutted by the respondents, it can clearly be seen that the respondent-Council had all along followed prescriptions of Indian Nursing Council be it pertaining to syllabi or duration of the course, and therefore, it was expected to fall a line with the Central Council in the matter of providing minimum qualification for admission to these Nursing Courses as well.

12. I am aware that the petitioner institutes despite being aware that their affiliating body, i.e. State Nursing Council had prescribed 10+2 with Science as the required qualification for admission to ANM/GNM courses on 17.08.2018, but, remained quiet till April, 2019 when perhaps their negotiations with the State Nursing Council for registering the students with the qualification 10+2 with Arts failed. The conduct of the petitioner institutes is unacceptable and cannot be countenanced in law. This Court would have thrown this petition on this sole ground, had the interest of the students admitted in these institutions was not in mind of this Court.

13. Taking note of the fact that coming into force of the Jammu and Kashmir Reorganization Act, 2019 and application of the Indian Nursing Council, Act 1947 to the UT of J&K and UT of Ladakh, future admission to these courses would be as per the norms and the guidelines laid down in the Regulations framed by the Indian Nursing Council. This Court in the given facts and circumstances narrated above, is inclined to accept this petition to safeguard the interest of the students, who have been admitted by the petitioner institutes. But for the illegalities and deviations itself committed by the State Nursing Council, this Court would have imposed the exemplary costs on the petitioner institutes for taking the innocent students for a ride and playing with their career.

14. Be that as it is, for the reasons stated above, this petition is allowed. The respondent Nursing Council is directed to regularize the admissions of the students possessing the requisite qualification as prescribed by the Indian Nursing Council as one time exception and permit them to sit in the examination for the course/courses provided they are otherwise eligible and meet the requirements prescribed by the respondent-Council.

15. Disposed of as above along with connected CM(s).