Cochin College of Engineering and Technology Athippatta vs Pharmacy Council of India; MGM Silver Jubilee College of Polytechnic and Pharmaceutical Sciences vs Pharmacy Council of India

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** # **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **THURSDAY, THE 8[TH] DAY OF DECEMBER 2022 / 17TH AGRAHAYANA,** **1944** **WP(C) NO. 38755 OF 2022** ## **PETITIONER:** **COCHIN COLLEGE OF ENGINEERING AND TECHNOLOGY ATHIPPATTA, EDAYUR P.O., VALANCHERY VIA, MALAPPURAM, PIN- 676 552, REPRESENTED BY ITS EXECUTIVE DIRECTOR.** **BY ADVS. GEORGE POONTHOTTAM (SR.) NISHA GEORGE ANN MARIA FRANCIS** ## **RESPONDENTS:** - **1 THE PHARMACY COUNCIL OF INDIA COMBINES COUNCIL'S BUILDING TEMPLE LANE, ROTLE, NEW DELHI- 110 002, REPRESENTED BY ITS REGISTRAR.** - **2 THE APPELLATE AUTHORITY PHARMACY COUNCIL OF INDIA, COMBINES COUNCIL'S BUILDING TEMPLE LANE, ROTLE, NEW DELHI- 110 002, REPRESENTED BY ITS REGISTRAR CUM SECRETARY.** - **3 THE DIRECTOR OF MEDICAL EDUCATION MEDICAL COLLEGE, KUMARAPURAM ROAD, CHALAKKUZHI, THIRUVANANTHAPURAM - 695 011.** - **4 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, HEALTH & FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM- 695 001.** **BY ADV MANU S., DSG OF INDIA** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.12.2022, ALONG WITH WP(C).38790/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.P(C) Nos. 38755 and 38790 of 2022 2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **THURSDAY, THE 8[TH] DAY OF DECEMBER 2022 / 17TH AGRAHAYANA,** **1944** **WP(C) NO. 38790 OF 2022** ## **PETITIONER:** **MGM SILVER JUBILEE COLLEGE OF POLYTECHNIC AND PHARMACEUTICAL SCIENCES, PAMPAKUDA, ERNAKULAM DISTRICT, PIN-686 667, REPRESENTED BY ITS EXECUTIVE DIRECTOR.** **BY ADVS. GEORGE POONTHOTTAM (SR.) NISHA GEORGE ANN MARIA FRANCIS** ## **RESPONDENTS:** - **1 THE PHARMACY COUNCIL OF INDIA, COMBINES COUNCIL'S BUILDING TEMPLE LANE, ROTLE, NEW DELHI-110 002, REPRESENTED BY ITS REGISTRAR.** - **2 THE APPELLATE AUTHORITY, PHARMACY COUNCIL OF INDIA, COMBINES COUNCIL'S BUILDING TEMPLE LANE, ROTLE, NEW DELHI-110 002, REPRESENTED BY ITS REGISTRAR CUM SECRETARY.** - **3 THE DIRECTOR OF MEDICAL EDUCATION, MEDICAL COLLEGE, KUMARAPURAM ROAD, CHALAKKUZHI, THIRUVANANTHAPURAM - 695011.** - **4 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HEALTH & FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** **BY ADV MANU S., DSG OF INDIA** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.12.2022, ALONG WITH WP(C).38755/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.P(C) Nos. 38755 and 38790 of 2022 3** **'C.R'** ## **DEVAN RAMACHANDRAN, J.** **------------------------------------------W.P(C) Nos. 38755 and 38790 of 2022 --------------------------------------------------** Dated this the 08[th] day of December, 2022 ## **JUDGMENT** Being fully aware that the issues which this Court is now considering, have already been noticed and answered to substantial extent by another learned Judge, I deem brevity to be necessary in this judgment. 2. The petitioners in these two cases – they having been heard together, adverting to the similarity of the factual factors involved – are Educational Agencies, running Bachelor of Pharmacy (B.Pharm) course; and they made applications to the 'Pharmacy Council of India' (PCI), for approval to commence Diploma in Pharmacy (D.Pharm) Course. 3. The petitioners allege that even though their applications were fully competent, they were refused to be considered by the PCI, citing the sole reason that they were not accompanied by “a consent of affiliation” from the Examining Authority. They allege that even though they had applied for the same with the jurisdictional Examining Authority – which is stated to be the “Chairman, Board of ## **W.P(C) Nos. 38755 and 38790 of 2022 4** D-Pharm Examination”, under the Director of Medical Education (DME) – said Authority did not respond; thus constraining them to make applications to the PCI, without enclosing the same. They assert that, in such circumstances, it was improper for the PCI to have rejected their applications; and thus pray that these Writ Petitions be allowed. 4. Sri.George Poonthottam, learned Senior Counsel, instructed by Smt.Ann Maria Francis – learned counsel for the petitioners in these cases, relied upon the judgment of a learned Judge of this Court in **Principal, DM Wims College** **of Pharmacy v. Pharmacy Council of India [2022 (2)** **KLT 567],** to argue that the requirement in the “Scheme for approval of D.Pharm Course under Section 12 of the Pharmacy Act, 1948” and the “Education Regulations, 2020 for Diploma Course in Pharmacy” (hereinafter “The Scheme” and “The Regulations” respectively for brevity), to the extent to which it mandates the applicants to obtain “consent of affiliation” of the Examining Authority, has been found to be unnecessary, if not illegal. The learned Senior Counsel referred to Paragraph 15 of the said judgment and contended that, when this Court has already declared the law so ## **W.P(C) Nos. 38755 and 38790 of 2022 5** conclusively, the PCI was wholly in error in rejecting his clients' applications on that sole ground. 5. In response, however, Smt.S.Krishna – learned Central Government Counsel representing the PCI, submitted that **Principal, DM Wims College of Pharmacy** (supra) has been taken up in appeal before a learned Division Bench of this Court, through W.A.No.1696/2021; but conceded that no interim order has been yet issued in it. Smt.Krishna then argued that there is a felicitous reason for the 'Scheme' to contain the requirement for the applicants to obtain the “Consent of Affiliation” from the Examining Authority; which is that, otherwise, once the PCI grants approval for the course, it might create a deleterious situation in future, should the said Authority either refuse or fail to conduct the examinations. She argued that this will put the students in peril; and, therefore, it is by way of abundant caution that the PCI has incorporated the said requirement in the “Scheme”. She thus prayed that this Writ Petition be dismissed. 6. Smt.Parvathy K. – learned Government Pleader appearing for the 2[nd] respondent – DME, began saying that, though the said Authority or the Board of D-Pharm **W.P(C) Nos. 38755 and 38790 of 2022 6** Examination (“Board”), have no objection in conducting the examinations should the PCI grant approval to the courses as requested by the petitioners, the fact remains that they did not give the “Consent of Affiliation” yet, because they were not approached through proper applications. She added that, however, the DME and the Board are willing to abide by any directions to be issued by this Court. 7. Smt. Parvathy Kottol then explained that the Examining Agency has certain responsibilities vested in them by the “Regulations”, namely, that said Authority is to provide: (a) adequate rooms with necessary furniture for holding written examinations; (b) well-equipped laboratories for holding practical examinations; (c) an adequate number of qualified and responsible examiners and staff to conduct and invigilate the examination; and (d) such other facilities as may be necessary for the efficient and proper conduct of examinations. She submitted that, therefore, normally, before the examinations begin, it would be necessary for the Examining Authority to verify all the afore; but unequivocally admitted that there is no impediment for them to conduct the examinations, even for the courses that are to be now approved by the PCI. ## **W.P(C) Nos. 38755 and 38790 of 2022 7** 8. In reply, Sri.George Poonthottam – learned Senior Counsel, contended that the afore submissions of Smt.Parvathy K. are factually incorrect; and are, at the best, technical in nature because, as evident from Exts.P1 and P5 in these two Writ Petitions, his client had approached the DME seeking “Consent of Affiliation”, but that said Authority did not accede to it, until the date on which they were to make the applications to the PCI. He then submitted that the requirements, as afore mentioned in the “Regulations”, would burden the said Authority only as regards the 3[rd] and 4[th] among them, since the 1[st] and 2[nd] are to be provided solely by the Educational Agency themselves; and which would be inspected and verified by the PCI, before the approval to the course is granted. He predicated that, therefore, in such scenario and in view of the express undertaking by the DME and the “Board” that they have no objection to conduct the examinations even for the courses to be approved by the PCI in future, these writ petitions are imminently deserving of being allowed, so that the PCI can then evaluate his clients' applications on its merits. 9. The dialectical contentions as afore render it inescapable that the sweep of consideration by this Court is ## **W.P(C) Nos. 38755 and 38790 of 2022 8** limited to whether the requirement in the “Scheme” - that the applicant should obtain “Consent of Affiliation” from the Examining Authority - is mandatory; and whether, in the absence of the same, the applications of the petitioners deserves to be rejected. ## 10. In **Principal, DM Wims College of Pharmacy** (supra), a learned Judge of this Court, adverted to the afore issues and declared as under: “This Court clearly stated that the power given to the Pharmacy Council under S.10 of the Pharmacy Act is only to prescribe minimum standard of education required for qualification as a Pharmacist. Similarly, S.10(2)(a) to (d) of the Pharmacy Act are the provisions which deals about the matters that can be prescribed. This Court clearly says that to approve the course of study and also to approve the examination for qualification for registration as a Pharmacist, there cannot be any scheme not relatable to the power given under S.10 of the Pharmacy Act. This Court observed that the State has no role for prescribing standards for education of Pharmacy Council of India. The same principle is applicable here also. Clause 3 of Ext.P10 scheme not relatable to the power given under S.10 of the Pharmacy Act. It has no nexus with the object for which the power is given. In such circumstances, according to me, the consent of affiliation of Examining Authority **W.P(C) Nos. 38755 and 38790 of 2022 9** prescribed as a pre-requisite mandatory document to be submitted by the applicant for approval under S.12 of the Pharmacy Act is arbitrary and unsustainable.” 11. I am in complete affirmation with the afore holdings of the learned Single Judge and see no reason to differ from it. 12. However, by way of supplementation, I propose to add a few words. 13. There is little doubt – it being fully admitted – that the PCI grants approval to a course only after thorough scrutiny and evaluation of the infrastructural facilities offered and provided by the individual Educational Agencies. The requirement of number of class rooms, laboratories and such other are fully within the province of the applicable Regulations of the PCI; and unless the applicant conforms and satisfies the same, no approval will ever be granted. As expected, Smt.S.Krishna - Central Government Counsel, has no case contrary to this. 14. That being so said, when one turns to the “Regulations”, it states that there are certain enumerated conditions to be fulfilled by the Examining Authority, namely: ## **W.P(C) Nos. 38755 and 38790 of 2022 10** “(a) adequate rooms with necessary furniture for holding written examinations; (b) well-equipped laboratories for holding practical examinations; (c) an adequate number of qualified and responsible examiners and staff to conduct and invigilate the examination; and (d) such other facilities as may be necessary for efficient and proper conduct of examination.” 15. As correctly argued by Sri.George Poonthottam – learned Senior Counsel, as far as (a) and (b) above are concerned, they are to be provided by the Educational Agencies/Applicants, which will surely be verified by the PCI, even before the approval to their courses is granted. At the best, therefore, the Examining Authority has to only verify whether they are available at the time of the examinations. 16. Coming to the last two conditions afore, the Examining Authority certainly is to provide adequate number of examiners and staff to conduct and invigilate the examinations; as also other facilities, as may be necessary for its proper conduct. These are not to be provided at the time when the approval to the courses is considered by the PCI, but when the examinations are to be conducted. **W.P(C) Nos. 38755 and 38790 of 2022 11** 17. Hypothetically, the Examining Authority perhaps may be justified in saying that they do not have enough number of qualified and responsible Examiners and hence, unable to conduct the examination for the additional courses to be granted by the PCI; but beyond that they have no role to play, particularly, at the stage of approval of the courses in question. 18. Pertinently, even to a reiteratingly pointed question from this Court, Smt.Parvathy K. – learned Government Pleader, offered no objection on behalf of the DME or the “Board”- which is, admittedly, the Examining Authority - that there is any dearth of qualified and responsible examiners or staff to conduct the examinations, even for the courses to be approved in favour of the petitioners; or that there is any insufficiency of the facilities from their side or from that of the applicants, for the efficient and proper conduct of such in future. 19. As has been already said above, the infrastructural requirements and other imperative facilities are to be met exclusively by the Educational Agency; and though the “Regulations” stipulate that the Examining Authority shall provide them, it can only mean that they are expected to ## **W.P(C) Nos. 38755 and 38790 of 2022 12** ensure that such are available at the time of the examinations and nothing else. 20. In the afore perspective and scenario, it is apodictic that the requirement in the “Regulations”, that the applicant should produce “Consent of Affiliation” from the Examining Authority, can only be seen to be e _x abundanti cautela_ and as a directory or a desirable requirement, rather than being mandatory, so as to lead to the rejection of their applications in its absence. 21. Inevitably, therefore, my view is fully in tandem with that recorded in **Principal, DM Wims College of Pharmacy** (supra). In such circumstances, recording the submissions of Smt.Parvathy.K – learned Government Pleader on behalf of the DME and the Examining Authority, that they have no objection to conduct the examinations, should PCI grants approval to the courses now requested by the applicants; I allow these Writ Petitions, with a consequential direction to the PCI to take up the applications of the petitioners and consider the same on its merits, based on the inspections conducted or to be conducted by them, in terms of law. **W.P(C) Nos. 38755 and 38790 of 2022 13** The afore exercise shall be completed as expeditiously as is possible, but not later than one month from the date of receipt of a copy of this judgment. Needless to say, consequent to the afore and if the PCI is to grant approval to the courses requested by the petitioners, the names of their Institutions will be included in the list of Colleges for students to seek admission. Necessary action in this regard shall be taken by the Competent Authority without any avoidable delay. **Sd/-DEVANRAMACHANDRAN, JUDGE** lsn **W.P(C) Nos. 38755 and 38790 of 2022 14** ## **APPENDIX OF WP(C) 38790/2022** ## **PETITIONER EXHIBITS** **Exhibit P1 TRUE COPY OF THE APPLICATION NO. MGM/PH/EKM DATED 23.03.2021 SUBMITTED BEFORE THE DIRECTOR OF MEDICAL EDUCATION ALONG WITH CHALAN AND AFFIDAVIT, EXCEPT OTHER ENCLOSURES. Exhibit P2 TRUE COPY OF THE COMMUNICATION BEARING F.NO. 14-56/2021(REVIEW OF SIF)/ 499698 OF THE 1* RESPONDENT DATED 16.11.2021 ALONG WITH ANNEXURES.** - **Exhibit P3 TRUE COPY OF THE RELEVANT PORTION OF THE MINUTES OF THE EXECUTIVE COMMITTEE MEETING OF THE 1 RESPONDENT HELD ON 08.08.2022.** - **Exhibit P4 TRUE COPY OF THE APPEAL DATED 05.11.2022 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT IN THE PRESCRIBED FORMAT AS AVAILABLE FROM THE PORTAL OF THE PCI ALONG WITH THE AFFIDAVIT AND OTHER ENCLOSURES.** - **Exhibit P5 TRUE COPY OF THE REPRESENTATION NO. MGMSJCP/PH/EKM/01/2022 SUBMITTED BY THE PETITIONER BEFORE THE DME DATED 14.11.2022, WITHOUT ENCLOSURES.** - **Exhibit P6 TRUE COPY OF THE COMMUNICATION BEARING REF. NO. 02.381/2022-PCI/14974-75 DATED 24.11.2022 ISSUED BY THE 1ST RESPONDENT.** - **Exhibit P7 TRUE COPY OF THE EDUCATION REGULATIONS, 2020 FOR DIPLOMA COURSE IN PHARMACY BEARING NOTIFICATION DATED 09.10.2020 ISSUED BY THE PHARMACY COUNCIL OF INDIA.** **Exhibit P8 TRUE COPY OF THE SCHEME FOR APPROVAL OF D.PHARM COURSE U/S 12 OF THE PHARMACY ACT, 1948 AND THE EDUCATION REGULATIONS, 2020 FOR DIPLOMA COURSE IN PHARMACY. Exhibit P9 TRUE COPY OF THE NOTIFICATION BEARING NO. DHE/5208/2022/B3 DATED 21.11.2022 ISSUED BY THE DIRECTOR OF MEDICAL EDUCATION.** **W.P(C) Nos. 38755 and 38790 of 2022 15** ## **APPENDIX OF WP(C) 38755/2022** ## **PETITIONER EXHIBITS** **Exhibit P1 TRUE COPY OF THE APPLICATION NO.CCET/PC-DM/1/2020-21 DATED 24.03.2021 SUBMITTED BY THE PETITIONER BEFORE THE DIRECTOR OF MEDICAL EDUCATION ALONG WITH CHALAN EXCEPT OTHER ENCLOSURES.** - **Exhibit P2 TRUE COPY OF THE COMMUNICATION F. NO.14-56/2021 (REVIEW OF SIF)/4996-98 OF THE 1ST RESPONDENT DATED 16.11.2021 ALONG WITH ANNEXURES.** - **Exhibit P3 TRUE COPY OF THE RELEVANT PORTION OF THE MINUTES OF THE EXECUTIVE COMMITTEE MEETING OF THE 1ST RESPONDENT HELD ON 08.08.2022.** - **Exhibit P4 TRUE COPY OF THE APPEAL DATED 03.11.2022 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT IN THE PRESCRIBED FORMAT AS AVAILABLE FROM THE PORTAL OF THE PCI ALONG WITH THE AFFIDAVIT.** - **Exhibit P5 TRUE COPY OF THE REPRESENTATION NO. CCET/D.PH/03/2022 DATED 14.11.2022 SUBMITTED BY THE PETITIONER, WITHOUT ENCLOSURES.** - **Exhibit P6 TRUE COPY OF THE COMMUNICATION BEARING REF.NO. 02.381/2022-PCI/14974-75 DATED 24.11.2022 ISSUED BY THE 1ST RESPONDENT.** - **Exhibit P7 TRUE COPY OF THE EDUCATION REGULATIONS, 2020 FOR DIPLOMA COURSE IN PHARMACY BEARING NOTIFICATION DATED 09.10.2020 ISSUED BY THE PHARMACY COUNCIL OF INDIA.** - **Exhibit P8 TRUE COPY OF THE SCHEME FOR APPROVAL OF D.PHARM COURSE U/S 12 OF THE PHARMACY ACT, 1948 AND THE EDUCATION REGULATIONS, 2020 FOR DIPLOMA COURSE IN PHARMACY.** - **Exhibit P9 TRUE COPY OF THE NOTIFICATION BEARING NO. DHE/5208/2022/B3 DATED 21.11.2022** **W.P(C) Nos. 38755 and 38790 of 2022 16** **ISSUED BY THE DIRECTOR OF MEDICAL EDUCATION.** ## **RESPONDENTS EXHIBITS: NIL** ## **TRUE COPY** **P.A TO JUDGE** **LSN**