Fathima College of Pharmacy, Kollam v. Pharmacy Council of India and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **THURSDAY, THE 15TH DAY OF DECEMBER 2016/24TH AGRAHAYANA, 1938** **WP(C).No. 24031 of 2016 (D) ----------------------------** ## **PETITIONER:** **-----------** **FATHIMA COLLEGE OF PHARMACY, KOLLAM - 691 004, REPRESENTED BY ITS DIRECTOR AZAD RAHIM AGED 68, S/O.A.A RAHIM, MALIKA VEEDU, LAKSHMI NADA, KOLLAM - 691 013.** **BY ADVS.SRI.P.B.KRISHNAN SRI.P.M.NEELAKANDAN SRI.P.B.SUBRAMANYAN SRI.SABU GEORGE SRI.S.NITHIN (ANCHAL)** **RESPONDENT(S): --------------** **1. THE PHARMACY COUNCIL OF INDIA, COMBINED COUNCIL BUILDING, KOTLA ROADAIWAN-E-GALIB MARG, P.O BOX 7020, NEW DELHI - 110 002.** **2. THE DIRECTOR, DIRECTORATE OF MEDICAL EDUCATION, MEDICAL COLLEGE P.O, THIRUVANANTHAPURAM - 695 011.** **3. THE LBS CENTRE FOR SCIENCE & TECHNOLOGY, NANDAVAN, PALAYAM, THIRUVANANTHAPURAM - 695 033.** **4. THE CHAIRPERSON, BOARD OF DIPLOMA IN PHARMACY EXAMINATIONS, DIRECTORATE OF MEDICAL EDUCATION, THIRUVANANTHAPURAM - 695 011.** - **R1 BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL R2 & R4 BY GOVERNMENT PLEADER SRI.RON BASTIAN R3 BY ADV. SMT.K.K.RAZIYA, SC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15-12-2016 ALONG WITH WPC.35635/2016 & WPC.36292/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **mbr/** ## **WP(C).No. 24031 of 2016 (D) ----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:** ## **-----------------------** **EXHIBIT P1 : DATED 26-10-2015 TRUE COPY OF THE COMMUNICATION FROM THE PETITIONER BY EMAIL ADDRESSED TO RESPONDENT NO 2. EXHIBIT P2 : DATED 29-10-2015 TRUE COPY OF THE COMMUNICATION FROM THE PETITIONER BY EMAIL ADDRESSED TO RESPONDENT NO 2.** - **EXHIBIT P3 : DATED NIL TRUE COPY OF THE DECISION OF THE 99TH CC OF RESPONDENT NO.1 RATIFYING THE EXCESS ADMISSIONS FOR THE YEAR 2015-16.** - **EXHIBIT P4 : DATED NIL-TRUE COPY OF THE LIST OF CANDIDATES GOT ADMISSION IN THE PETITIONER'S COLLEGE FOR D.PHARM COURSE DURING THE ACADEMIC YEAR 2015-16 INCLUDING SL NO.121 TO 126.** - **EXHIBIT P5 : DATED 05-07-2016 TRUE COPY OF THE LETTER ISSUED BY THE BOARD OF D.PHARM EXAMINATIONS BEARING NO.B7/18226/D. PHARM/2016/DME INTIMATING REFUSAL TO REGISTER 6 EXCESS CANDIDATES FOR THE D.PHARM (AS PER SL.121 TO 126 OF EXT.P4)** - **EXHIBIT P6 : DATED NIL-TRUE COPY OF THE LIST OF 71 STUDENTS WITH THEIR APPLICATION NO. WHO WERE GIVEN ADMISSION AS PER THE ALLOTMENT MADE BY RESPONDENT NO.3.** **EXT.P7 SERIES : DATED NIL-TRUE COPIES OF THE ALLOTMENT MEMOS ISSUED BY RESPONDENT NO.3 FOR ADMISSION TO THE PARA DIPLOMA COURSE 2015 PRODUCED AS EXT. P7 (1) TO EXT. P7(71) AND COLLECTIVELY MARKED AS EXT. P7 SERIES.** ## **RESPONDENT(S)' EXHIBITS:** **-----------------------** **EXT.R2A: A TRUE COPY OF LETTER DATED 10.8.2016. EXT.R2B: A TRUE COPY OF LETTER DATED 17.8.2016. EXT.R2C: A TRUE COPY OF THE E-MAIL COMMUNICATION DATED 24.11.2015. EXT.R2D: TRUE COPY OF THE LIST OF ADMITTED CANDIDATES SENT TO THIS RESPONDENT BY THE 3RD RESPONDENT.** **--2--** **--2--** ## **WP(C).No. 24031 of 2016 (D) ---------------------------** |**EXT.R2E:**|**TRUE COPY OF E-MAIL COMMUNICATION SENT BY THE**| |---|---| ||**PETITIONER TO 3RD RESPONDENT.**| |**EXT.R3A:**|**A TRUE COPY OF THE EMAIL MESSAGE**| ||**DATED 5.12.2015.**| |**EXT.R3B:**|**A TRUE COPY OF THE LIST OF STUDENTS.**| ||**//TRUE COPY//**| ||**P.S. TO JUDGE**| **mbr/** ## **SHAJI P. CHALY, J.** -------------------------------------------------- ## **W.P.(C) Nos.24031, 35635 & 36292 of 2016 ----------------------------------------------Dated this the 15[th] day of December, 2016** ## **JUDGMENT** The captioned writ petitions are filed by the very same petitioner and the subject matter of consideration are common in nature, and therefore, I heard them together and propose to deliver a common judgment. Facts and documents discernible from W.P.(C) No.36292 of 2016 are relied upon for the disposal of the writ petitions. 2. Petitioner is a self-financing institution offering D.Pharm Course. The approved intake is 120 seats. A 50:50 ratio is maintained between the Government and Management seats. According to the petitioner, Government allotted seats in excess of its quota in 2015-16. Petitioner approached the Pharmacy Council to approve the additional 6 seats on condition of reducing the intake to 114 for the academic year 2016-17. However, the Board of Examinations of the Directorate of Medical Education was not registering these candidates on the ground that the last date of registration has expired. Thereupon, petitioner filed W.P.(C) No.24031 of 2016 **W.P.(C) No.24031/2016 & conn. cases** 2 and an interim order was passed, directing to register the candidates with Sl.Nos.121 to 126 provisionally for the Diploma in Pharmacy Course for the academic year 2015-16 and permit them to appear for the ensuing Board examination, pending disposal of the writ petition. 3. According to the petitioner, as a retaliatory action, respondents have excluded the petitioner from the allotment process for 2016-17, when trial allotment was made on 05.11.2016. Hence the petitioner was again forced to approach this Court by filing W.P.(C) No.35635 of 2016 on 07.11.2016. The writ petition was moved on the same day before this Court and the learned Government Pleader sought time to get instructions, and the matter was posted to 08.11.2016. On 08.11.2016, the learned Government Pleader submitted that the recognition of the institution had been cancelled, and both the writ petitions were posted to 10.11.2016. On 10.11.2016, Government Pleader submitted that the order cancelling the approval of the petitioner has been issued, and a copy will be served to the counsel for the petitioner during the course of the day. Accordingly, the writ petitions were posted to 11.11.2016. It is stated that a two **W.P.(C) No.24031/2016 & conn. cases** 3 page order dated 10.11.2016 was served on the counsel for the petitioner. A perusal of the said order (Ext.P21), makes it clear that the decision to de-recognize the petitioner for purpose of allotment of Government quota seats is arrived at without issuing any notice and without hearing the petitioner. Therefore, according to the petitioner, there is clear violation of the principles of natural justice. It is also stated, the complaint referred to in Ext.P21 is of the year 2013, for which, petitioner has given proper and valid explanation, pursuant to which nothing has been heard from the part of respondent No.4 till the filing of the second among the writ petitions. 4. That apart, it is contended, it is clear from Ext.P21 that the reason to cancel the approval of the petitioner has no nexus with the complaint filed in the year 2013. Moreover, Ext.P21 order has been passed only on 10.11.2016, whereas, the learned Government Pleader submitted before this Court on 08.11.2016 itself that a decision has been taken to cancel the approval of the petitioner. Yet another contention predominantly advanced by the petitioner is that the State Government has no jurisdiction to de-recognize a Course, the conduct of which is approved by the Pharmacy Council of **W.P.(C) No.24031/2016 & conn. cases** 4 India. These are the background facts projected by the petitioner in this writ petition. 5. The facts would reveal that the fate of the latter two writ petitions captioned above will depend upon the decision taken in this writ petition. When this writ petition came up for admission before this Court on 14.11.2016, an interim order was passed permitting the petitioner to admit students to the First Year D.Pharm Course in the quota earmarked to the petitioner as per the agreement entered into between the petitioner and the Government, and the admissions made will be subject to the result of the writ petition. According to the petitioner, by virtue of the interim order passed by this Court, 60 students are admitted against the quota earmarked to the petitioner. 6. Fourth respondent has filed a counter affidavit basically justifying Ext.P21 order issued by the Government, cancelling the approval of the petitioner College on the ground that they have failed to provide adequate facilities, both academic and infrastructure. It is also stated that petitioner College was conducting Diploma in Pharmacy on the strength of a No Objection Certificate issued by the State Government **W.P.(C) No.24031/2016 & conn. cases** 5 with approval of the Pharmacy Council. But the petitioner failed to maintain the standard prescribed under the Education Regulation, 1991 framed under Sec.10 of the Pharmacy Act, 1948. During the academic year 2015-16, petitioner violated the conditions in the agreement and admitted students in excess of their quota allotted to them by the agreement. The averments of the petitioner in paragraph 3 of the writ petition are contrary to the same, and false and is denied by the 4[th] respondent. It is also stated, the contention of the petitioner that the 3[rd] respondent, LBS, allotted total 82 candidates against the Government Quota of 60 seats is misleading and against truth. 7. The E-mails are produced by the petitioner, Exts.P3 and P4, to substantiate their case that LBS allotted more candidates to Government quota, but the truth is otherwise. The E-mail dated 08.12.2015 sent by the petitioner college to the 3[rd] respondent shows that LBS released only tuition fees of 35 candidates allotted by the 3[rd] respondent LBS. A true copy of the E-mail along with list of the 35 students dated 08.12.2015 is produced as Ext.R4(a). It is also submitted, vide D.O. Letter dated 17.08.2016, the Director of the 3[rd] **W.P.(C) No.24031/2016 & conn. cases** 6 respondent informed the 2[nd] respondent that the 3[rd] respondent received only two E-mails from the petitioner college dated 24.11.2015 and 08.12.2015. The E-mail dated 24.11.2015 was in respect of settlement of tuition fee paid by the students and E-mail dated 08.12.2015 is with respect to the list of students admitted to the petitioner college. Third respondent clarified that for the academic year 2015-16, LBS allotted only 41 students to the petitioner college, and 35 students have joined in the college, evident from Ext.R4(b). 8. Therefore, according to the 4[th] respondent, petitioner violated the terms of the agreement, and admitted students over and above the quota allotted to them and the said fact was suppressed before this Court and also before the 1[st] respondent, Pharmacy Council of India. On the basis of the suppression, they obtained an order from the 1[st] respondent to adjust the excess students vide Ext.P5 proceedings. It is also stated that the same is also a subject matter pending consideration before this Court in W.P.(C) No.24031 of 2016. That apart, it is contended, the action was initiated on the basis of the complaint forwarded by the 1[st] respondent, Pharmacy Council and also on the basis of the complaint **W.P.(C) No.24031/2016 & conn. cases** 7 forwarded by Chief Minister's Public Grievances and Redressal Cell. A surprise inspection was conducted by the Board of D.Pharm Examination, Directorate of Medical Education on 12.07.2016, evident from Exts.R4(c) and R4(d). According to the 4[th] respondent, it was on the basis of that surprise inspection conducted, Ext.P21 Government Order is issued, derecognizing approval to the petitioner. These are the materials available before this Court to consider the reliefs sought for in the writ petition. 9. So far as W.P.(C) No.24031 of 2016 is concerned, the same is in respect of Ext.P5 order issued by the State Government dated 05.07.2016, whereby it was informed that the registration of the students was completed on 10.05.2016 as per the notification issued by the Director of Medical Education. When the said writ petition came up before this Court, registration was directed to be granted provisionally, and the respondents were directed to permit the students to participate in the examination, as per an interim order dated 19.07.2016. The said Ext.P5 order has a clear co-relation to Ext.P5 produced along with W.P.(C) No.36292 of 2016 issued by the Pharmacy Council of India. The same is a decision **W.P.(C) No.24031/2016 & conn. cases** 8 taken by the Pharmacy Council on its 99[th] meeting held on 10[th] and 11[th] of June, 2016 in respect of approval of pharmacy institutions. Therein, as per paragraph 01.099.553, the issue with respect to the excess admission made to the petitioner institution was considered, and the same was approved. Therefore, the Pharmacy Council, which is the authority constituted for the recognition of the pharmacy institutions and the students admitted, has granted approval to the excess students. The said order of the Pharmacy Council is not under challenge before any court/or competent authority and therefore, it has become final. In that view of the matter, respondents are not entitled to canvass or contend for the proposition that in violation of the quota fixed for admission of students, excess students were admitted. True, the respondents have a case that the petitioner has admitted excess students in violation of the quota earmarked, and the petitioner transgressed into the quota fixed for the Government, and made admission. From Ext.P5 approval order issued by the Pharmacy Council, it cannot be said that whether the quota earmarked to the Government was transgressed by the petitioner. It remains as a disputed 9 **W.P.(C) No.24031/2016 & conn. cases** question. The contentions and rival contentions show that the said issue can be finally sorted out, if the issue is considered by recourse to proper trial proceedings by taking evidence. 10. Be that as it may, now the question revolves round Ext.P21 issued by the State Government dated 10.11.2016, de-recognizing the course from the academic year 2016-17. The reasons assigned in Ext.P21 are that, as per the letter read as first paper of DME, on the basis of the complaints received, the allegations against the institution are of various nature, which include harassing the faculty by the management, misappropriation of daily attendance, posting of unqualified teaching and non-teaching staff, non-payment of AICTE salaries to teaching staff and State pay to non-teaching staff, deficiency of basic facilities like toilet, drinking water, hostel facilities etc. Based on the said complaint, Government issued instructions to DME to conduct a surprise enquiry/inspection by an effective team of experts in the field. Accordingly, DME conducted an inspection and forwarded a report of the surprise inspection conducted in the institution. The DME reported that the institution admitted 143 students against the sanctioned intake of 120 in 2015-16 academic **W.P.(C) No.24031/2016 & conn. cases** 10 year. Out of the 143 students, 16 students were ousted and 127 were retained. Out of the 127 students, 7 students were not allowed to write the examination, as only 120 is the sanctioned strength. However, 6 students were permitted to write the examination through a court order. DME also reported that the institution has no mandate to continue as an approved institution, and therefore, two stipulations are suggested by the DME which are as follows: “(i) Strict action shall be taken against the college including the cancellation of its approval; and (ii) The intake of students shall not be permitted from the next academic year onwards, and thereupon Government have examined the case and found that the institution had violated the conditions of Letter of Permission in a naked manner, and therefore, instructed not to allot students to the petitioner college from the academic year 2016-17 onwards. 11. Now the question is whether the State Government is vested with any power to cancel the approval or derecognize the petitioner institution. Learned Senior Counsel appearing for the petitioner contended that respondents have no manner of right to interfere with the powers exercised by **W.P.(C) No.24031/2016 & conn. cases** 11 the 1[st] respondent, Pharmacy Council of India. Learned Senior Counsel has also invited my attention to the proposition of law laid down in that regard by the Apex Court in _**'Jaya Gokul Educational Trust v. Commissioner and Secretary to Government**_ ' [2000 (2) KLT 267 (SC)], and a Division Bench judgment of this Court in _**'St. Joseph's Hospital Trust v. Kerala University of Health Sciences**_ ' [2012 (4) KLT 444]. Going through the afore-quoted judgments, it is unequivocally clear, merely because the State Government is vested with powers to issue NOC enabling the statutory authority to grant recognition to an institution, it will not empower the State Government to exercise any powers under the provisions of the Pharmacy Act, 1948, on the basis of the NOC granted. 12. Learned Government Pleader has invited my attention to Sec.13 of the Pharmacy Act, 1948 to justify Ext.P21 order issued by the State Government, which read thus: _“13._ _**Withdrawal of approval.** --(1) Where the Executive Committee reports to the Central Council that an approved course of study or an approved examination does not continue to be in conformity with the Education Regulations, the Central Council shall give notice to the authority concerned of its intention to take into consideration the question of withdrawing the declaration of approval accorded to the course of study_ **W.P.(C) No.24031/2016 & conn. cases** 12 _or examination, as the case may be, and the said authority shall within three months from the receipt of such notice forward to the Central Council through the State Government such representation in the matter as it may wish to make._ _(2) After considering any representation which may be received from the authority concerned and any observations thereon which the State Government may think fit to make, the Council may declare that the course of study or the examination shall be deemed to be approved only when completed or passed, as the case may be, before a specified date”._ 13. In my considered opinion, Sec.13 will not in any manner provides any power to the Government to derecognize an institution recognized by the 1[st] respondent. If at all there is any power vested with the State Government, as per Sec.13, that is only to forward any recommendation to the 1[st] respondent. The State Government has not undertaken any such exercise, but on the other hand, issued Ext.P21 order, directing to de-recognize the institution from the year 2016-17 onwards. In my considered opinion, either under the NOC granted by the Government or under the provisions of Pharmacy Act, 1948, the State Government has no power or authority to issue an order de-recognizing the institution and cancelling its approval. That being the situation, it can be seen that Ext.P21 cannot be sustained under law, and therefore, I quash the same. **W.P.(C) No.24031/2016 & conn. cases** 13 14. However, the issue with respect to the admission of excess students is still under dispute, as I have stated earlier, and if it is to be exactly identified, a trial proceeding is required in view of the contentions and rival contentions raised by the parties. In order to have a quietus to the whole issue, I have suggested to the counsel for the petitioner as well as the respondents that, for the academic year 2016-17, the quota earmarked to the petitioner will be limited to 54 and to the Government 60. Six students cannot be given admission for the academic year 2016-17 in view of the stipulations contained under Ext.P5 in W.P.(C) No.36292 of 2016, issued by the 1[st] respondent, in view of the recognition of six excess students, during the previous academic year. However, 60 students were admitted to the quota earmarked to the petitioner for the year 2016-17, on the basis of the interim order passed by this Court. Accordingly, out of the 60 students admitted, 54 students alone will be earmarked towards the quota of the petitioner, in accordance with the order of the merit list prepared, and the remaining six students will be considered as students from State Government Quota. The Government will be at liberty to provide 54 students to the **W.P.(C) No.24031/2016 & conn. cases** 14 petitioner college for the academic year 2016-17, and the competent among the respondents are directed to allot 54 students to the petitioner college by spot admission or otherwise. Necessary directions shall be issued by the State Government in respect of financial commitments of the students in accordance with law, while implementing the directions specified above. 15. In view of the findings rendered in W.P.(C) Nos.24031 and 36292 of 2016, the issues raised under Ext.P5, in W.P.(C) No.35635 of 2016, in my considered opinion, has become inconsequential and redundant. Accordingly, W.P.(C) Nos.24031 and 36292 of 2016 are allowed and W.P.(C) No.35635 of 2016 is dismissed as the reliefs sought for in the said writ petition has become inconsequential, in view of the directions in the other two writ petitions. Sd/- **SHAJI P. CHALY JUDGE** //true copy// P.S. to Judge St/16.12.2016