MGM Silver Jubilee College of Pharmacy, MGM Technological Campus, Kilimanoor, Pulimath P.O., Pulimath, Thiruvananthapuram-695612 v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE THE CHIEF JUSTICE MR.HRISHIKESH ROY** ## **&** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR TUESDAY, THE 09TH DAY OF JULY 2019 / 18TH ASHADHA, 1941** **WA.No.1483 of 2019** **AGAINST THE ORDER IN WP(C) 15509/2019 OF HIGH COURT OF KERALA DATED 14.6.2019** ## **APPELLANT/PETITIONER:** **MGM SILVER JUBILEE COLLEGE OF PHARMACY, MGM TECHNOLOGICAL CAMPUS, KILIMANOOR, PULIMATH.P.O., PULIMATH, THIRUVANANTHAPURAM-695612, REPRESENTED BY ITS EXECUTIVE DIRECTOR.** **BY ADVS.** **SRI.MOHAN JACOB GEORGE SMT.NIGI GEORGE SMT.P.V.PARVATHY (P-41) SMT.REENA THOMAS SRI.T.K.NAVAS** ## **RESPONDENT/RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY, HEALTH AND FAMILY WELFARE DEPARTMENT GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** **2 SECRETARY, HIGHER EDUCATION DEPARTMENT, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM-695001, REPRESENTED BY ITS REGISTRAR.** W.A.Nos.1483, 1484, 1485, 1487, 1489 &1500/2019 2 - **3 KERALA UNIVERSITY OF HEALTH SCIENCES, MEDICAL COLLEGE.P.O., THRISSUR, KERALA, PIN-680 596.** - **4 DIRECTORATE OF MEDICAL EDUCATION, KUMARAPURAM ROAD, CHALAKUZHI, THIRUVANANTHAPURAM-695011, REPRESENTED BY ITS DIRECTOR.** - **5 THE COMMISSIONER FOR ENTRANCE EXAMINATIONS, HOUSING BOARD BUILDING, SHANTHI NAGAR, THIRUVANANTHAPURAM-695 001.** **BY ADV. SRI.P.SREEKUMAR,SC,KERALA UTY.HEALTH AND ALLIED SCIENCE SPL. GOVERNMENT PLEADER SRI. M A ASIF** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 09.07.2019, ALONG WITH WA.NOS.1487, 1484, 1485, 1489 & 1500/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.A.Nos.1483, 1484, 1485, 1487, 1489 &1500/2019 3 ## J U D G M E N T ## A.K. Jayasankaran Nambiar, J These Writ Appeals impugn a common interim order dated 14.6.2019 of a learned Single Judge in Writ Petition Nos.14244, 15206, 15498, 15509, 15514 and 15525 of 2019. The said writ petitions were filed by Self Financing Institutions that proposed to start colleges for imparting education in pharmacy leading to Degrees (B. Pharm) and Diploma (D.Pharm) in Pharmacy. It is not in dispute that all the institutions have the necessary approval from the regulatory bodies, namely, AICTE and the Pharmacy Council of India (PCI). After securing the approval from the aforesaid regulatory bodies, the educational agencies/institutions approached the Kerala University of Health Sciences (University)/Director of Medical Education (DME) for the necessary affiliation for the courses proposed to be started by them in the respective institutions. When there was no call for applications for affiliation, made either by the University or the Director of Medical Education as the case may be, the petitioner educational agencies/institutions approached this court through the writ petitions aforementioned, seeking inter alia a direction to the University/Director of Medical Education to process their applications for affiliation, and to grant the same, so as to enable them to admit the students for the respective courses in the academic year 2019-20. By way of an interim prayer, a direction was also sought to the University/DME to consider the application for affiliation expeditiously during the pendency of the Writ Petitions. The said interim prayer was, however, rejected by the order impugned in these appeals. The W.A.Nos.1483, 1484, 1485, 1487, 1489 &1500/2019 4 learned Single Judge took note of the submission of the learned Standing Counsel for the Kerala University of Health Sciences Sri. P. Sreekumar, as also the learned Special Government Pleader Sri. M.A. Asif appearing on behalf of the State, that in the absence of any perspective plan prepared by the University/State Government there could not be a consideration of an application for affiliation, and proceeded to hold that since the petitioner colleges did not have the required affiliation/recognition as contemplated under the statute, they could not be reckoned in the centralised allotment process or permitted to make admissions to the courses, namely, B. Pharm/D.Pharm that had been approved by the AICTE/PCI. 2. Before us, it is the contention of the learned Senior Counsel Sri. Kurian George Kannanthanam assisted by S/Sri. Mohan Jacob George, Tony George Kannanthanam, S. Krishnamoorthy, George Jacob, on behalf of the appellants that, the learned Single Judge did not actually consider the interim prayer for consideration of their applications for affiliation, but instead proceeded on the basis that what was sought for was the grant of an affiliation itself. It is pointed out that as per the provisions of the Kerala University of Health Sciences Act, 2010, and in particular Sections 50 and 51 there of, separate procedures are contemplated for affiliation and recognition of colleges as also for grant of permission for opening a new college or institution of higher learning under the University. A distinction is therefore sought to be drawn between the provisions of Section 50 of the Act, which deals with affiliation and recognition and section 51 of the Act, which deals with permission for opening a new college or institution. It W.A.Nos.1483, 1484, 1485, 1487, 1489 &1500/2019 5 is stated that as per the scheme of the Act, a college or institution must first obtain a permission from the University for starting a new course, and it is only thereafter that the said college or institution can apply for an affiliation from the University. It is then pointed out that the University has not been following a procedure for granting permission to colleges or institutions for commencing a particular course of study, since its formation, and hence, it was not justified in relying on a precondition for the grant of such permission namely, the preparation of a perspective plan as contemplated under Section 51, for denying an affiliation in terms of Section 50 of the Act read with Chapter XXI of the Kerala University of Health Sciences First Statute, 2013. It is further contended that, inasmuch as the colleges in question had already obtained the necessary approval from the AICTE and the PCI, and the University has not been insisting on a prior permission for starting new courses till date, an objection that may have relevance to a permission to start a college cannot be raised at this distance of time to deny an affiliation to the colleges in question. 3. As regards the stand of the Government with regard to the non-grant of affiliation to the colleges offering D.Pharm course, it is the contention of the learned counsel for the appellants that, while it may be a fact that the State Government had raised its objections with regard to the desirability of starting new colleges imparting D. Pharm courses in the State, once the said objections were overruled by the AICTE/PCI, which granted the necessary approval to the colleges in question, the same objections could not be relied upon for refusing to consider the applications for affiliation submitted by the colleges before the W.A.Nos.1483, 1484, 1485, 1487, 1489 &1500/2019 6 Director of Medical Education. 4. Per Contra, it is the submission of the learned counsel for the Kerala University of Health Sciences, Sri. Sreekumar, as also the learned Government Pleader Sri. M.A. Asif on behalf of the University/State Government, that as per the decision of the Supreme Court in Jawaharlal Nehru Technological University Registrar v. Sangam Laxmi Bai Vidyapeet and Ors. [2018 (14) SCALE 575], the University/State Government cannot be said to be denuded of their power to reject an application for affiliation on policy considerations since the judgment relied upon observes that the standard of education imparted by an institution cannot be compromised and sacrificed by permitting institutions to come up in a reckless manner without there being any requirement for them at a particular place. The contention, in other words, is that merely because approval has been granted by AICTE and PCI, it does not follow that the University/State Government is powerless to prevent the mushrooming of institutions, which do not satisfy the criteria of imparting quality education within the State. 5. We have carefully considered the rival submissions and have gone through the provisions of the AICTE Approval Process Handbook for the academic year 2019-20, as also the provisions of the Kerala University of Health Sciences Act, 2010 read with the relevant provisions of the Kerala University of Health Sciences First Statute, 2013. What strikes us at the outset, with regard to the Kerala University Health Sciences Act, 2010, is the scheme envisaged in Chapter VII therein, whereby the University is expected to prepare a perspective plan for W.A.Nos.1483, 1484, 1485, 1487, 1489 &1500/2019 7 educational development for the location of institutions of higher learning in a manner ensuring equitable distribution of facilities for higher education in medical and allied sciences, having regard to the needs of unserved and under developed areas within the jurisdiction of the University. The said perspective plan is to be the basis for the consideration of applications for permission to open a new college or institution of higher learning. Any application received by the University has to be tested on the touchstone of conformity with the perspective plan so prepared. It is only after a college or institution has been granted the permission in terms of Section 51 of the Act, that the particular college or institution can prefer an application for affiliation and recognition in terms of Section 50 of the Act read with Chapter XXI of the Kerala University of Health Sciences First Statute, 2013. 6. In the instant cases, we note that the Kerala University of Health Sciences has not, till date, prepared a perspective plan as contemplated under Section 51 of the Act. That apart, in none of the previous years did the University insist on a college or institution producing a permission granted in accordance with Section 51 the Act, while considering an application for affiliation preferred by such a college/institution. As a matter of fact, the submission of the learned Standing Counsel for the University is that a perspective plan has since been prepared and the same has to be routed through the governing council and the senate for the purpose of finalisation in accordance with the provisions of the Act. It is apparent therefore, that a perspective plan as contemplated under the Act is not in existence today, for the University to initiate the procedure contemplated in Section 51 of the Act for grant of permission to open a new college or institution of higher learning. It would follow, therefore, that any provision under the Act read W.A.Nos.1483, 1484, 1485, 1487, 1489 &1500/2019 8 with Chapter XXI of the First Statute, 2013 dealing with affiliation, which mandates a compliance with the provisions of a perspective plan, cannot be relied upon by the University pending finalisation of the perspective plan in terms of the Act. We are of the the view that, in the absence of a perspective plan drawn up in accordance with the Act, the University must, as in the previous years, consider the applications for affiliation, without reference to any draft perspective plan that has not been finalised in terms of the 2010 Act. 7. When it comes to the D Pharm courses where, instead of the University, it is the Director of Medical Education of the State Government, which is the affiliating body, we note the stand of the State Government in the statement filed by the Special Government Pleader on 3.7.2019, which reads as follows: “................ …................... …............. 6. It is submitted that on receipt of their communication from the AICTE seeking views of the State Government in the matter of establishing new B-Pharm/D-Pharm courses as also for enhancement of the seats in existing colleges, the Government had conducted a detailed study of the Pharmacy Education in the State through the Director of Medical Education and Annexure - I perspective plan was prepared and submitted before the AICTE expressing the views of the Government. It is submitted that the admission in the previous years were found to be 60% of the total available seats and the pass percentage in these colleges was also found to be very poor. 7. It is submitted that scope for Pharmacist who pass out both B-Pharm and D Pharm course is very limited in the state and the prospectus for those who pass out of self financing is much more limited. Several of the students who pass out such courses are left without any employment and those few fortunate students to get employed are paid very poorly. It is submitted that the students who get admitted to Pharmacy courses are mostly from poor financial backgrounds and solely depends upon educational loans for paying fee for such courses. Due to the unemployment/under employment of the ill-fated students, the loans availed turns to be non-performing assets and the students in their young age as also their parents in their old age are proceeded against by the financial institutions. The socio-economic problem that is created out of unemployment/under employment of those who study such courses results in the parents-students being put W.A.Nos.1483, 1484, 1485, 1487, 1489 &1500/2019 9 in debt traps due to their inability to repay the educational loans availed. It is submitted that after having evaluated the essentiality for Pharmacy courses in the state, the Government had submitted the perspective plan before the AICTE expressing the view that there is no need for establishing institutions or for enhancing intake in any of the institutions. …................ …........................ …..................” 8. We further note that the aforesaid objections raised by the State Government were available before the AICTE, at the time when the said body was considering the applications for approval submitted by the colleges herein. It is not in dispute that, notwithstanding the said objection of the State Government, the AICTE granted approval to the appellant colleges, and against the said decision of the AICTE to grant approval, the State Government has not approached any authority impugning the said decision. The question then arises as to whether, in the absence of any challenge to the said decision of the AICTE, the State Government, through the Director of Medical Education, can resist an application for affiliation preferred by the Colleges in question on the very same objections. In our view, the inaction on the part of the State Government, in not impugning the decision of the AICTE that granted approval to the colleges in question by overruling its objections, would prevent the State Government from relying on the very same objections while considering the applications for affiliation preferred by the colleges in question. This is more so because the policy considerations cannot be pressed into service while considering an application for affiliation since the application for affiliation has to be considered based on parameters that assess the quality standards maintained by the college or institution. In other words, at the stage of consideration of an application for affiliation, the State Government has to consider not the desirability of establishing a college imparting courses in W.A.Nos.1483, 1484, 1485, 1487, 1489 &1500/2019 10 pharmacy, but the suitability of the applicant college based on its available infrastructure as also its ability to impart quality education in the subject. The aforesaid aspects having been already verified by other Regulatory bodies such as AICTE and PCI, the role of the State Government would ordinarily be to ensure that the colleges in question continue to have the infrastructural facilities and faculty that were found existing by the AICTE/PCI while granting approval. 9. Before parting with this case, we might also refer to the judgment in Jawaharlal Nehru Technological University Registrar (supra) relied upon by the learned Standing Counsel for the Kerala University of Health Sciences to fortify his contention regarding the power of the University/State Government to consider policy aspects at the time of considering the applications for affiliation preferred by the colleges in question. The observations of the Supreme Court relied upon by the learned counsel are to be found in paragraphs 21 and 27, which read as follows: “................. …........... …........ 21. The decision taken by the State Government to impose a moratorium as apparent from facts reflected in perspective plan is based on a survey and supported by the data. Considering the fact that seats are going abegging. Even in 2017-18 in the Pharmacy course, data has been given in the SLP that among 56 colleges affiliated to the University, 30 were in the city of Hyderabad and out of total 1630 seats, 173 had remained vacant. Thus, it is apparent that a large number of seats remained vacant. Not more than 30 seats can be allotted to one institution. In the circumstances, the observation of the High Court that it was for the institution to worry and consider the viability and it was not for the University or State Government to take same into consideration, is completely a flimsy and impermissible reason employed. The mushroom growth of educational institutions cannot be permitted. The observation made by the High Court that unfit institution will automatically shut down the courses is not the judicious approach warranted in such matters. It is not only that the requirement of the locality should exist but it has to be ensured that only the standard educational institutions should come up and once they come up, they W.A.Nos.1483, 1484, 1485, 1487, 1489 &1500/2019 11 should be able to survive. A large number of Institutions are not to be opened up to die an unnatural death on the principle of survival of the fittest and due to non-availability of teachers/students. Standard of education cannot be compromised and sacrificed by permitting institutions to come up in a reckless manner without there being any requirement for them at a particular place. There is a need to strengthen the existing system of education not to make it weak by further complicating the issues by wholly unwarranted approach as the one adopted by the High Court. It cannot be left at the choice of the institution to open the course whenever or wherever they desire. The High Court has also erred in observing that the seats remaining vacant could not be the relevant criteria for refusal of NOC. 27. The counsel appearing for the respondents were not able to point out any of the provisions in the AICTE Act and rules for adjudging requirement of the locality have been framed by the Council. In the absence of guidelines or norms framed to check the mushroom growth of the institutions, the university cannot be deprived of considering the said aspect. The State Government had also sent a communication to AICTE regarding the alarming increase in the number of technical educational institutions in the area in question and imbalanced growth. The decision of State has been taken in an objective manner and the same is based on the consideration of data and could not be said to be irrational or arbitrary in any manner whatsoever. The policy decision of the State Government cannot be said to be illegal and on that basis, the University has taken the decision in terms of Section 20 of the Act of 1982. …............. ….................. …..................” 10. We might immediately state that while we are in complete agreement with the views expressed by the Supreme Court in the aforequoted paragraphs, we are in the instant cases concerned with the stage at which the objections on policy matters had to be considered by the regulatory authority. As already noticed above, while it may be open to the State Government or the University to raise these objections before the regulatory authorities, at a stage when the applications for approval of the colleges/institutions are being considered by the regulatory authority, once the said stage is crossed leading to a grant of an approval to the colleges/institutions concerned, to permit the University/State Government to raise the same objections at the time of consideration of applications for affiliation W.A.Nos.1483, 1484, 1485, 1487, 1489 &1500/2019 12 would tantamount to ignoring the decision of the regulatory body. This aspect assumes greater significance in the instant cases where, against the decision of the AICTE/PCI approving the colleges in relation to the courses proposed, there was no challenge by the State/University before the appropriate authority. In our view, objections on policy considerations cannot be pressed into service at the second stage, where an application for affiliation comes up for consideration before the affiliating body, namely, the University/State Government. 11. We must also deal with the objection of the learned Standing Counsel for the University, placing reliance on the decision of the Supreme Court in Parswanath Charitable Trust v. All India Council for Technical Education [(2013) 3 SCC 385], that if a direction to consider an application for affiliation is issued from this court at this stage, it would breach the time frame stipulated by the Supreme Court in the Parswanath case (supra). In this connection, we note that the Schedule drawn up by the Supreme Court at paragraph 41 of the judgment was with reference to the Schedule that was available in the AICTE Regulation 1994, as modified by the Supreme Court in the said case. While the said Regulations have since been superseded by the All India Council for Technical Education (Grant of Approval for Technical Institutions) Regulations, 2016 and thereafter, by a similar Regulation of 2018, it is also relevant to note that the Schedule in Parswanath case (supra) fixes the time frame for grant or refusal of approval by University/State Government. We are in these cases not concerned with the grant or refusal of any approval by the University/State Government but rather with the non-consideration of an application for affiliation to the University/State Government. In our view, W.A.Nos.1483, 1484, 1485, 1487, 1489 &1500/2019 13 the time schedule prescribed in Parswanath case (supra) does not strictly apply to the grant or refusal of affiliation by the affiliating body, namely, the Kerala University of Health Sciences/Directorate of Medical Education, more so when it was the inaction of the affiliating body that led to the delayed consideration and the last date for completing admissions is not yet over. 12. The upshot of the above said discussion is that the appeals herein, against the interim order of the learned single judge, must succeed. We, therefore, allow the appeals by directing the University/State Government to consider the respective application for affiliation submitted by the colleges/institutions within a period of two weeks from the date of receipt of the application in the prescribed format from the appellant colleges/institution. To enable the appellant colleges/institutions to prefer their applications in the prescribed format the University/State Government shall open the respective portals and make available the prescribed format for preferring applications for affiliation within the next two days. The period of two weeks granted to the University/State Government to complete the process of consideration of the application shall commence from the respective dates of receipt of the completed applications from the appellant colleges pursuant to the procedure directed above. 13. In the case of W.A.1489 of 2019 pertaining to Nirmala College of Pharmacy, the directions given above shall apply mutatis-mutandis to the applications for affiliation in respect of the enhanced seats, for which approval has been obtained by the college from the AICTE/PCI. W.A.Nos.1483, 1484, 1485, 1487, 1489 &1500/2019 14 14. We make it clear that the other issues raised in the writ petitions are not being considered in this judgment, and are left open for consideration by the learned Single Judge in the pending writ petitions. Sd/Hrishikesh Roy, Chief Justice sou. Sd/A.K. Jayasankaran Nambiar, Judge