Moulana College of Pharmacy v. Kerala University of Health Sciences

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **TUESDAY, THE 26TH DAY OF NOVEMBER 2019 / 5TH AGRAHAYANA, 1941** ## **WP(C).No.27958 OF 2019(T)** ## **PETITIONER/S:** **MOULANA COLLEGE OF PHARMACY, NEAR RAILWAY STATION, ANGADIPPURAM P.O., PERINTHALMANNA, MALAPPURAM DISTRICT-679 321, REPRESENTED BY ITS PRINCIPAL, DR. PROF. SAPNA SHRIKUMAR.** **BY ADVS. SRI.SANTHOSH MATHEW SRI.ARUN THOMAS SRI.JENNIS STEPHEN SRI.VIJAY V. PAUL SMT.VEENA RAVEENDRAN SRI.ANIL SEBASTIAN PULICKEL SMT.DIVYA SARA GEORGE SMT.JAISY ELZA JOE** ## **RESPONDENT/S:** **1 KERALA UNIVERSITY OF HEALTH SCIENCES, MEDICAL COLLEGE, TRICHUR, KERALA-680 596, REPRESENTED BY ITS REGISTRAR. 2 THE REGISTRAR, KERALA UNIVERSITY OF HEALTH SCIENCES, MEDICAL COLLEGE, TRICHUR, KERALA-680 596. R1-2 BY SRI.P.SREEKUMAR, SC, KERALA UTY. OF HEALTH AND ALLIED SCIENCES.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.11.2019, THE COURT ON 26.11.2019 DELIVERED THE FOLLOWING:** **W.P.(C)No.27958 of 2019** **2** ## **JUDGMENT** This writ petition is filed by a College of Pharmacy functioning under the Kerala University of Health Sciences, seeking direction to the respondents to accept the application submitted by the petitioner for affiliation of additional intake of 40 students for B.Pharm Course and complete the process including inspection in order to take a decision before 15[th] March, 2020, to comply with the stipulations of the apex court in the judgment in ' _**Parshvanath Charitable Trust v. All India Council for Technical Education**_ ' [(2013) 3 SCC 385], and for a further direction to the respondents to issue consent for affiliation to the petitioner to enable the petitioner to submit an application before the Pharmacy Council of India (PCI) for the additional intake of 40 seats for B.Pharm Course for the academic year 2020-21. Brief material facts for the disposal of the writ petition are as follows: 2. Petitioner was granted affiliation for starting provisional B.Pharm Course with an intake of 60 students during the academic year 2011-2012, evident from Ext.P1. Letter of approval was granted by the Pharmacy Council of India for the intake of 60 students ## **W.P.(C)No.27958 of 2019** **3** on 20.10.2015, and the AICTE granted approval for intake of 100 students for the academic year 2019-20 on 29.04.2019, evident from Ext.P4. As per Ext.P5 dated 19.08.2019, continuation of provisional affiliation was granted to the petitioner for the academic year 201920. Thereafter, on 17.09.2019, petitioner submitted Ext.P6 application for affiliation for increased intake of B.Pharm Course from 60 to 100 based on Ext.P4 approval granted by the AICTE for additional intake of 40 students. 3. On 26.09.2019, Ext.P7 Email was sent by the University, informing that the application submitted by the petitioner cannot be processed as the University has not issued notification for seat enhancement. On 27.09.2019, petitioner submitted Ext.P8 application before the University for issuing consent for affiliation to enable the petitioner to apply to the Pharmacy Council of India for increase in additional intake. Petitioner apprehends that the consent sought for by the petitioner would be delayed, which will cause serious prejudice to the petitioner, since in accordance with the directions issued by the apex court in the afore-quoted judgment, the entire process has to be completed by 15[th] March, 2020. **4** ## **W.P.(C)No.27958 of 2019** 4. A detailed statement is filed by the respondents. Among other contentions, it is stated that, the present situation in the State, so far as the pharmacy education is concerned, is that, altogether there are 54 affiliated institutions imparting training in B.Pharm course, and around 3000 students pass out of these institutions every year and the total number of pharmacists registered with the Pharmacy Council is around 35000. It is also stated that the Government institutions are not in a position to absorb the graduates and the private sector in the State is not that much strong to provide employment to the students passing out every year. Other contentions are also raised with respect to the difficulties faced by the students who are passing out B.Pharm Course. 5. The sum and substance of the contention is that, the Pharmacy education in the State is moving towards a situation where it would be akin to the Engineering education in the State, and there is clear saturation in the field of B.Tech courses and a good number of seats are lying vacant and many colleges are closing down. The closure of the Engineering Colleges has seen its reflection in the Pharmacy sector as many Engineering Colleges are making efforts to start **W.P.(C)No.27958 of 2019 5** Pharmacy Colleges. There is mushrooming of the Pharmacy Colleges in the State which would have a direct impact on the quality and standards of the education. During the last year, in Malappuram District alone, where the petitioner college is functioning, 37 seats in the B.Pharm course are lying vacant, even after the extension of the cut off date for admission up to 15[th] November, 2019. 6. Therefore, it is basically contended that, it is the duty of the University to ensure the equitable distribution of the health sciences courses in the State. Considering the aforesaid aspects, the University did not invite applications for affiliation of Pharmacy courses in the State for the academic year 2019-20. However, a few colleges got the permission from the AICTE and the PCI and considering the said aspect, this Court directed the University to accept their applications and process the same. But the same principle cannot be adopted here as the petitioner is yet to obtain permission from the PCI. That apart, it is contended that, the grant of affiliation is not a part of the fundamental right, and it is governed by the provisions in the Act and the Statutes and the petitioner cannot seek orders as a matter of right. **W.P.(C)No.27958 of 2019** **6** Other contentions are also raised in similar lines. 7. I have heard Sri. Santhosh Mathew, learned counsel for the petitioner and Sri. P. Sreekumar, learned Standing Counsel appearing for the respondents, and perused the pleadings and the documents on record. 8. Learned counsel for the petitioner submitted that, in order to secure the approval of the Pharmacy Council of India, there are certain pre-requisite mandatory documents to be submitted by the applicant in accordance with the Scheme framed under Regulation 9(1) of Bachelor of Pharmacy (B.Pharm) Course Regulations, 2014. One of the prime conditions is consent of affiliation of the examining authority (University) for permission to start the course or increase in intake capacity. Even though there is a clear stipulation thereunder that the application shall be submitted between 1[st] August and 31[st] August, as per Ext.P11 produced by the petitioner, it is clear that the time is extended up to 15.12.2019 (from 15.11.2019 to 15.12.2019), and accordingly the institutions are required to submit the application with the prescribed documents within the stipulated time period only. 9. It is also submitted that, a Division Bench of this Court had occasion to consider the issue in the **W.P.(C)No.27958 of 2019** **7** judgment in W.A.No.873 of 2019 dated 05.09.2019, wherein, it was found that the prior approval of the Pharmacy Council of India would be necessary for starting a B.Pharm programme even in a situation where, the approval from the AICTE is already secured by the appellant. Learned counsel has also invited my attention to the judgment of this Court in W.A.No.1483 of 2019 dated 09.07.2019, which was rendered by this Court from the rejection of an interim order sought for, by a learned Single Judge, declining direction to consider the application for affiliation expeditiously during the pendency of the writ petitions, and also noted that the interim prayer sought for by the petitioner therein was rejected, taking note of the contention put forth by the learned Special Government Pleader as well as the learned Standing Counsel for the respondents herein, 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 **8** **W.P.(C)No.27958 of 2019** the courses, viz., B.Pharm/D.Pharm that had been approved by the AICTE/PCI. 10. Paragraph 2 of the above judgment is appropriate in order to consider the facts and circumstances in this case, which read thus: _“_ _**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 thereof, 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 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_ **W.P.(C)No.27958 of 2019** **9** _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.”_ 11. After assimilating the situation, it was held that: “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 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 Kerala University of Health Sciences ## **W.P.(C)No.27958 of 2019** ## **10** Act, 2010, 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”. 12. However, it was noted that the Kerala University of Health Sciences has not prepared a perspective plan as contemplated under Section 51 of the Act. So also, the Division Bench has noted the fact that, in none of the previous years did the University insist on a college or institution producing a permission granted in accordance with Section 51 of the Act, while considering an application for affiliation preferred by such a college/institution. 13. After considering the aforesaid aspects and taking into account the judgment of the apex court in ## ' _**Jawaharlal Nehru Technological University Registrar v.**_ _**Sangam Laxmi Bai Vidyapeet and Others**_ ' [2018 (14) SCALE 575] it was held that, while it would 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 **W.P.(C)No.27958 of 2019 11** 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 would tantamount to ignoring the decision of the regulatory body. 14. True, the said findings are rendered by the Division Bench, since the petitioner therein did have the approval of AICTE as well as the Pharmacy Council of India. Here, in this case, petitioner is having the approval of AICTE only. However, case of the petitioner is that, without securing the consent for affiliation, the application will not be processed by the PCI in accordance with the guidelines for the purpose. 15. After evaluating the rival submissions made across the Bar and taking note of the judgments rendered by this Court as well as the apex court discussed above, I am of the considered opinion that, in order to process the application for approval by the Pharmacy Council of India, the consent of affiliation is a vital requirement. However, when an application is submitted by the petitioner, the University is at liberty to carry out necessary inspection and identify **W.P.(C)No.27958 of 2019 12** whether the petitioner is having sufficient infrastructure for the additional intake of 40 seats for the B. Pharm Course. Therefore, it is only appropriate that the application is received for the purpose of consideration by the 1[st] respondent University. 16. It is also clear from Ext.P11 Public Notice issued by the Pharmacy Council of India, that the portal shall open from 15.11.2019 to 15.12.2019 and the institutions are required to submit the application with all the prescribed documents within the stipulated time period. As I have pointed out earlier, the consent of affiliation is a vital document to process the application submitted by the petitioner. Therefore, it is only just and proper that the application submitted by the petitioner is received by opening the portal and consider the same in accordance with law. It is also equally important to note that the University has got every authority to make its own views before the Pharmacy Council of India before grant of approval by the PCI. Accordingly, this writ petition is allowed partly, directing the University to open the portal, enabling the petitioner to submit the application at the **W.P.(C)No.27958 of 2019 13** earliest, and at any rate, within a week from the date of receipt of a copy of this judgment, and consider the same in accordance with law, and bearing in mind the stipulations prescribed by the Pharmacy Council of India in the matter of receipt of application specified above, and the judgment of the apex court in ' _**Parshvanath Charitable Trust'**_ ( _supra_ ), fixing the time limit for processing the application. I also make it clear that, the directions made above shall not be construed as any expression of opinion on the merits of the matter. **Sd/-** ## **SHAJI P.CHALY** **JUDGE** **W.P.(C)No.27958 of 2019** **14** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE ORDER DATED 1.9.2011 ISSUED BY THE 1ST RESPONDENT.** - **EXHIBIT P2 TRUE COPY COMMUNICATION DATED 20TH OCTOBER 2015 ISSUED BY THE PHARMACY COUNCIL OF INDIA TO THE PETITIONER AND THE 2ND RESPONDENT.** - **EXHIBIT P2(A) TRUE COPY OF THE ORDER DATED 24.10.2016 ISSUED BY PHARMACY COUNCIL OF INDIA.** - **EXHIBIT P3 TRUE COPY OF SAID LETTER OF APPROVAL DATED 10TH JUNE, 2019 ISSUED BY THE PHARMACY COUNCIL OF INDIA.** - **EXHIBIT P4 TRUE COPY OF PROCEEDINGS DATED 29.4.2019 ISSUED BY THE AICTE.** - **EXHIBIT P5 TRUE COPY OF THE PROCEEDINGS DATED 19.8.2019 ISSUED BY THE UNIVERSITY.** - **EXHIBIT P6 TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.** - **EXHIBIT P7 TRUE COPY OF REPLY ISSUED BY THE UNIVERSITY ON 26.9.2019.** - **EXHIBIT P8 TRUE COPY OF REQUEST SUBMITTED BY THE PETITIONER TO THE REGISTRAR OF UNIVERSITY ON 27.9.2019.** - **EXHIBIT P9 TRUE COPY OF CLARIFICATION ISSUED BY THE PHARMACY COUNCIL OF INDIA ON 9TH SEPTEMBER, 2019.** - **EXHIBIT P10 TRUE COPY OF NOTICE DATED 5.9.2019 ISSUED BY THE PHARMACY COUNCIL OF INDIA.** - **EXHIBIT P11 TRUE COPY OF THE PUBLIC NOTICE ISSUED BY THE PHARMACY COUNCIL OF INDIA.** **RESPONDENTS' EXHIBITS: NIL**