The Director, Directorate of Medical Education & The Chairperson, Board of Diploma in Pharmacy Examinations v. Fathima College of Pharmacy, The Pharmacy Council of India & The LBS Centre for Science & Technology

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE THE ACTING CHIEF JUSTICE MR.ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU MONDAY, THE 18TH DAY OF DECEMBER 2017/27TH AGRAHAYANA, 1939 WA.No. 319 of 2017 IN WP(C).24031/2016 ------------------------------------------------AGAINST THE JUDGMENT IN WP(C) 24031/2016 of HIGH COURT OF KERALA DATED 15-12-2016 -------- APPELLANTS/RESPONDENTS 2 & 4 IN THE WPC: ----------------------------------------------------- 1. THE DIRECTOR, DIRECTORATE OF MEDICAL EDUCATION , MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM-695011. 2. THE CHAIRPERSON, BOARD OF DIPLOMA IN PHARMACY EXAMINATIONS, DIRECTORATE OF MEDICAL EDUCATION, THIRUVANANTHAPURAM-695011. BY GOVERNMENT PLEADER SRI.ARAVINDA K. BABU ## RESPONDENTS/PETITIONER AND RESPONDENTS 1 & 3 IN WPC: ---------------------------------------------------------------------- 1. FATHIMA COLLEGE OF PHARMACY, KOLLAM-691004, REPRESENTED BY ITS DIRECTOR, AZAD RAHIM, AGED 68, S/O.A.A.RAHIM, MALIKA VEEDU, LAKSHMI NADA, KOLLAM-691013. 2. THE PHARMACY COUNCIL OF INDIA, COMBINED COUNCIL BUILDING, KOTTA ROAD-AIWAN-E-GALIB MARG, P.O.BOX 7020, NEW DELHI-110002. 3. THE LBS CENTRE FOR SCIENCE & TECHNOLOGY, NANDAVAN, PALAYAM, THIRUVANANTHAPURAM-695033. R2 BY ADV. SRI.SUVIN R.MENON, CGC R1 BY ADV. SRI.P.B.KRISHNAN R1 BY ADV. SRI.SABU GEORGE R1 BY ADV. SRI.P.M.NEELAKANDAN R1 BY ADV. SRI.P.B.SUBRAMANYAN R1 BY ADV. SRI.S.NITHIN (ANCHAL) BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 18-12-2017, ALONG WITH WA. 1706/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **ANTONY DOMINIC, Ag. C.J. & DAMA SESHADRI NAIDU, J.** -----------------------------------------------W. A. Nos.319 & 1706 of 2017 -----------------------------------------------Dated this the 18[th ] day of December, 2017 ## **JUDGMENT** ## **Antony Dominic, Ag. C.J.** 1. aThese appeals arise from the judgment of the learned single Judge in W.P.(C) Nos.24031 and 36292 of 2016. The writ petitions were filed by Fathima College of Pharmacy and were disposed of by a common judgment. 2. Insofar as W.A. No.319 of 2017 arising out of W.P. (C) No.24031 of 2016 is concerned, the issue raised before the learned single Judge was mainly concerning the excess admission of six students in the academic year 2015-16. In the judgment under appeal, the learned single Judge has ordered that for the next year, the management quota of seats will stand reduced by six and on that basis ordered that the excess admission be regularised. W. A. Nos.319 & 1706 of 2017 -2- 3. Insofar as W.A. No.1706 of 2017 arising out of W.P. (C) No.36292 of 2016 is concerned, that was filed by the management mainly challenging Ext.P21 whereby the Government of Kerala had withdrawn the recognition that was granted to the College. In the judgment in the writ petition, the learned single Judge held that under Section 13 of the Pharmacy Act, 1948, the State does not have such a power and that in the light of the judgment of the Apex Court in **Jaya Gokul Educational Trust v. Commissioner and Secretary to Government [2000 (2) KLT 267 (SC)]** and a Division Bench of this Court in **St. Joseph's Hospital Trust v. Kerala University of Health Sciences [2012 (4) KLT 444]** , the course open to the Government was to take up the matter with the Pharmacy Council of India and that it was for the Pharmacy Council of India alone to withdraw the recognition. 4. In these appeals filed by the State and its officers, -3- W. A. Nos.319 & 1706 of 2017 it is this common judgment of the learned single Judge, which is under challenge. 5. We heard the learned Government Pleader appearing for the appellants and Sri.P.B.Krishnan, the learned counsel appearing for the management. 6. Insofar as the W.A. No.1706 of 2017 is concerned, we do not think that there is anything much to be debated in the appeal for the reason that the power of withdrawal of recognition as held by the Apex Court and this Court in the judgments noticed above, is only with the Pharmacy Council of India and that the course open to the State is only to bring to the notice of the Pharmacy Council, the inadequacies or irregularities of the College and the Central Council alone, which can withdraw the recognition. This precisely is the view taken by the learned single Judge and therefore, the judgment of the learned single Judge in W.P. (C) No.36292 of 2016 challenged in W.A. No.1706 of 2017 is -4- W. A. Nos.319 & 1706 of 2017 only to be upheld and we do so. Accordingly, W.A. No.1706 of 2017 is dismissed. 7. Insofar as the judgment of the learned single Judge in W.P.(C) No.24031 of 2016 challenged in W.A. No.319 of 2017 is concerned, it is the common case of the appellants and the LBS Centre that the total number of seats which could be filled up by the management as permitted by the Pharmacy Council is 120. Based on the agreement between the management and the consortium of managements, 50% of the seats are to be filled up from the merit quota of students alloted by the LBS Centre and the 50% is to be filled up by the management. 8. Insofar as the academic year 2015-16 is concerned, it is the admitted case, which has also been accepted by the learned single Judge, that the management had admitted six students in excess of the sanctioned quota and according to them, these six students were accommodated against the W. A. Nos.319 & 1706 of 2017 -5- merit quota. It is also their case that these six students were alloted by the LBS Centre and that the excess admission was regularised by the Pharmacy Council of India. However, the case of the management that these students were alloted in the merit quota by the LBS, is not accepted either by the LBS or by the Government. In fact, the Government Pleader pointed out that even from Ext.P7 Allotment Memos itself, it can be seen that the excess students had not remitted the fees to the LBS Centre, in compliance with the instructions that were issued to them. Irrespective of the question whether the remittance of fee was in the manner as ordered by the LBS or not, fact remains that even according to the LBS and according to the learned single Judge himself, there was excess irregular admission of six students. It is, therefore, that the learned single Judge has also ordered that the excess number of students be reduced in the management quota of students -6- W. A. Nos.319 & 1706 of 2017 for the subsequent year. According to us, the learned single Judge, having found that the management had exceeded the sanctioned strength of students, should not have left the management by just ordering that the proportionate number of seats be reduced in the subsequent year. On the other hand, for such commercialisation of education, according to us, we feel that the management should have been at least suitably penalised by the learned single Judge. 9. On this issue, having heard the learned counsel on both sides, we feel that the management should be directed to pay `50,000/- each per student, (`50,000 x 6=`3,00,000/-) to the Government, lest the management would continue their irregularity in future years also and will seek to justify the same, pleading for sympathy by projecting the case of the allegedly innocent students. 10. Therefore, W.A. No.319 of 2017 is disposed of, confirming the judgment of the learned single Judge and at -7- W. A. Nos.319 & 1706 of 2017 the same time directing that the management shall remit with the Government `3,00,000/-. This shall be done as expeditiously as possible, at any rate, within one month from the date of receipt of a copy of this judgment. Writ Appeals are disposed of accordingly. Sd/- **ANTONY DOMINIC ACTING CHIEF JUSTICE** Sd/- **DAMA SESHADRI NAIDU JUDGE** kns/- //TRUE COPY// P.S. TO JUDGE