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Judgment
Chettur Shankaran Nair, J.—The question involved in these writ petitions is the same, -- it is whether respondents have power to regulate admissions to private Nursing Schools, run by minority communities. The notification impugned in all the writ petitions, is the notification, Ext. P1 in O.P. No. 10229/89.
Petitioners represent Nursing Schools, established and administered by a minority community, namely the Christian Community. Taking power under Sub-section (1) of Section 36 of the Travancore-Cochin Nurses & Midwives Act 10 of 1953, as amended by Act 15 of 1961 and Act 14 of 1964, the Kerala Nurses & Midwives Council issued Ext. P1 notification dated 29-11-1989, regulating admissions to Nursing Schools, Section 36 of the Act, enables the Council to make regulations:
"for all or any of the following matters:
(a) ..........................................................
(b) the conduct of any examinations which may be prescribed by rules as a condition of admission to the register and any matters ancillary to or connected with such examinations including the course of training which the candidates appearing for the examinations shall undergo;
(c) ..........................................................
(d) all other matters which may be necessary for the purpose of carrying out the objects of this Act".
Clause 4 of Ext. P1 lays down conditions of eligibility for admission to the Course. It reads.
"4(b). Age -- Not less than ! 7 years and not more than 22 years as on the 1st day of January of the year in which the course is commenced with relaxation of upper age limit up to 5 years in the case of candidates belonging to the Scheduled Castes or Scheduled Tribes and up to 3 years in the case of candidates belonging to the Backward communities".
Clause 10, reserves ten per cent of the total number of seats, for Scheduled Castes and Scheduled Tribes. Clause 11 limits the-quota available to managements. It reads :
"Seats to be reserved in the management quota:-- Twenty per cent of the seats, are reserved for the management and to the seats so reserved, the management shall be at liberty to select candidates of their choice from among the applicants subject to the condition that the candidates so selected shall possess all the minimum qualifications as required under these Regulations :
Provided that in the cae of institutions run by minority community, in addition to the twenty per cent of the seats reserved for the management under this Regulation, twenty per cent of the total seals are reserved for the candidates belonging to the concerned minority community and selection to such seats shall be made from such community on merit."
The regulations are challenged on the grounds, thai they are ultra vires of the powers u/s 36. that they are void by reason of repugnancy, and that they are violative of the fundamental right guaranteed to minority communities under Article 30 of the Constitution to establish and maintain, educational institution. It is submitted that Section 36 of the Stale Act, unlike Section 16 of the Central Act confers power only to make regulations in respect of enumerated purposes. Section 16 of the Central Act, enables the Council to make regulations :
"generally to carry out the provisions of this Act and in particular without prejudice to the generality of the foregoing-
power such regulations may provide for--a) to
ff)...................................................
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 qualification''s recognition under this Act;
j) any other matter which is to be or may be prescribed under this Act".
The State Act limits regulation making power to enumerated purposes. As already noticed, it reads:
"36............... for all or any of the following matters:
(b) the conduct of any examinations which may be prescribed by rules as a condition of admission to the register and any matters ancillary to or connected with such examinations including the course of training which the candidates appearing for the examinations shall undergo;
(c) to (d)
...............................................
Thus, the regulation making power u/s 36 of the State can be exercised only for enumerated purposes. Regulations can be made, only for:
"b) the conduct of any examinations which may be prescribed by rules as a condition of admission to the register and any matters ancillary to or connected with such examinations".
Ext. P1 prescribes age limit, for admission. Such an exercise is not permitted by any of the Sub-sections u/s 36. Likewise, Clause 11 restricts the percentage of seats, available to managements to forty per cent of total number of seats. Power to make regulations, restricting field of choice is not conferred by Section 36.
Additional Advocate General, answering the contention, submitted that the expression "any matter ancillary or connected with" occurring in Section 36(b) would comprehend power to make regulations in respect of any matter. He relied on Black''s Legal Dictionary to illustrate the meaning of the expression "ancillary". The argument overlooks obvious limitations. Ancillary powers can be exercised only in respect of matters for which there is power. Power u/s 36(b) is only power to regulate "conduct of any examination ............... and any matters ancillary or connected with such examinations".
Ancillary power is a projection to a power available, and thus incidental to it. It cannot be alien to, or derogatory of the power itself. An ancillary power cannot be used to gain, that which does not spring from the fountain head of power, when a power that is not conferred is exercised, the exercise will be ultra vires or beyond authority.
"If a power exists by Statute, Charter or custom to make bye laws, that power must be exercised strictly in accordance with the provisions of Statute, Charter or custom which confers the power".
(Craies on Statute Law -- Seventh Edition, Page 324).
In the words of H.W.R. Wade,
"Rules and Regulations not duly made under the Act of Parliament are legally ineffective. It follows that courts must determine the validity of delegated legislation by applying the test of ultra vires. Acts of Parliament have soevereign force, but legislation made under the delegated power can be valid only if it conforms exactly to the power granted".
In Bimal Chandra Banerjee Vs. State of Madhya Pradesh etc., the Supreme Court pointed out that a rule making authority has no plenary power, and that its exercise will be ultra vires, if it transgresses the parameters of the power granted to it. This principle was reiterated in Hukam Chand etc. Vs. Union of India (UOI) and Others, . The Supreme Court held that unlike Statute law, rule making power is bounded by the terms of delegation. The statement of law was reaffirmed in Bar Council of Delhi and Others Vs. Surjeet Singh and Others, . In tune, are the decisions in Powell v. May, (1946) 1 KB 330 Hoffmann La Roche & Co. v. Secretary of State, 1975 AC 295 Laker Airways v. Department of Trade, 1977 QB 643. The law is that, any exercise by a delegate in excess of delegation, is ultra vires and inoperative. Section 36 contemplates delegation of enumerated powers, for specified purposes and the purpose relevant in the context is, conduct of examinations, including matters ancillary or connected with such examinations. By use of this power, number of seats cannot be restricted. Ext. P1 is therefore ultra vires.
Counsel for petitioners argued further that Section 36 itself is void by reason of repugnancy, as Section 36 of the State Act is repugnant to Section 16 of the Central Act. Repugnancy arises when two legislations are irreconcilably inconsistent. When one Act cannot be obeyed without violating the other, repugnancy arises. That is the test of repugnancy laid down in M. Karunanidhi Vs. Union of India and Another, . In Zaverbhai Amaidas Vs. The State of Bombay, another test is visualised. Though repugnancy does not involve repeal, the principles of implied repeal, will apply "to that matter", when a State Act is repugnant to an act of Parliament. The question of repugnancy does not arise in the instant case, and it is unnecessary to consider the matter further.
Counsel for petitioners submitted further, that Ext. P1 notification is violative of Article 30, as it infringes the fundamental right of minority communities, to cherish, foster and develop the tenets of their denomination. The setting in which the Article was enacted, and the spirit of the days gone by, afford a better appreciation of the issue involved. This country has been the land of liberalism and tolerence. It has nurtured cultures and ideals wherever they came from, or in whatever language they were spoken, be it Aramaic, Arabic, Sanskrit, English or any other tongue. A great edifice of a composite culture was built with bricks and mortar of historic civilisations. It is the reflection of this, that is eloquently articulated in Article 51:
"to value and preserve the rich heritage of our composite culture".
The Constitution has guaranteed to minorities, the right to establish and administer educational institutions;
"All minorities, whether based on religion or not, shall have the right to establish and administer educational institutions of their choice". (Article 30)
The sweep of the right, has come for judicial interpretation, time and time again. The Supreme Court considered the amplitude of the right in Sidhrajbhai Sabbai v. State, AIR 1963 SC 540 The Ahmedabad St. Xavier''s College Society and Another Vs. State of Gujarat and Another, and Frank Anthony Public School Employees'' Association Vs. Union of India (UOI) and Others, . This court had occasion to consider the extent of the right in State of Kerala v. Manager, C.M. of Schools, 1970 KLT 106 and Yunus Kunju v. State of Kerala, (1988) 2 KLT 299. It is recognised that the right established by Article 30, is a fundamental right declared in terms absolute. It is intended to be a real right for protection of minorities in the matter of setting up educational institutions of their own choice.
The Christian Community is a minority community and they have the right to establish and administer educational institutions. Establishing educational institutions, and hospitals to tend the sick, have been integral to the work of Christian missionaries. Any institution that imparts knowledge, is an educational institution. Nursing, is a branch of knowledge as medicine is, and some of the subjects taught are common, though the degree of instruction differs. It follows that a School of Nursing, is an educational institution. Article 30 confers a right to establish and run such. The right is amenable (if at all) only to restrictive rigours like, public order, decency and morality. It is nobody''s case that the regulatory measures in Ext. P1 are imposed, on considerations of public order, decency or morality.
Clause 4 in Ext. P1 prescribes conditions of eligibility for admission by way of age. Clause 10 reserves ten per cent of the seats for Scheduled Castes and Scheduled Tribes, while Clause 11 limits the percentage of seats to be filled up by management to 40 per cent (20 per cent free choice and 20 per cent on merit from the community). The upper age limit fixed, would keep out Nuns from nursing schools. Nuns are women who have opted for a religious life, and who are admitted to ''religious congregations/ religious orders". According to cannon 597, no one can be admitted to an institution of consecrated life without training, prior to cannonical period of "formation". Without completing the age of seventeen, a person cannot be admitted to ''the Novitiate'' (cannon 643). Those selected have to undergo ''Aspirancy'' (ranging from six months to one year), ''Postulancy'' (one year), ''Formation'' (minimum 12 months) and then apostolic experience. The period can be extended, like probation (cannon 653). Aspirancy, Postulancy, Novitiate and Juniorate take a minimum of six years (See The Code of Cannon Law -- edited by James Cordiden, Thomas J. Green and Donald Heintochel). Thus a person would have attained at least the age of 23, by time she is ordained a nun. The maximum age is 22, under Clause 4(b) of Ext. P1. This clause, thus keeps out nuns from nursing schools and prevents them pursuing their religious vows. This infringes not only the right guaranteed under Article 30, but also the rights under Article 25. Likewise deprivation of sixty per cent of the total number of seats from managements is also a negation of the right under Article 30.
The only argument advanced by the additional Advocate General in defence of the restriction, is the public interest requires it. He was unable to state how public interest arises in this context, that too, when Article 29(2) does not come into play as the institutions are not State aided. The argument cannot stand in the light of the decision in Sidhrajbhai Sabbai v. State, AIR 1963 SC 540.
It follows that Ext. P1 except to the extent of, prescribing regulations for the conduct of examinations and prescribing the course of training, clearly infringes the right conferred on a minority community to establish and administer educational institutions of their choice. To that extent, it is ultra vires, too. It is so declared and the writ petitions are allowed. Parties will suffer their costs.