Himachal Pradesh High Court
Shiva Institute Of Pharmacy vs The State Of Himachal Pradesh & Another on 28 July, 2023
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
1
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
CWP No. 2743 of 2023
Date of Decision: July 28, 2023
.
Shiva Institute of Pharmacy ...Petitioner.
Versus
The State of Himachal Pradesh & another ..Respondents.
Coram:
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting?1 Yes
For the Petitioners: Mr. Kulbhushan Khajuria, Advocate.
For the Respondents: Mr.Prashant Sen, Deputy Advocate
r General.
Mr.Arun Kumar, Clerk, Department of
Technical Education, H.P. Secretariat
Shimla, H.P., present in person alongwith
record.
Vivek Singh Thakur, J.
Petitioner, a registered Education Society, is running an Educational Institute for imparting education in various courses. Petitioner-Society is running course of Bachelor in Pharmacy since 07.08.2015, after completing all codal formalities, including No Objection Certificate (NOC) from the State Government and Director Technical Education.
2. Petitioner-Society, intending to start new course of Masters in Pharmacy in Pharmacology from Session 2023-2024, sent a communication dated 16.09.2022 (Annexure P-1) to the Government of Himachal Pradesh for issuing NOC. Secretary, 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 28/07/2023 20:49:05 :::CIS 2Technical Education to the Government of Himachal Pradesh, directed the Director Technical Education, vide communication dated 21.09.2022 (Annexure P-2) to examine the proposal and .
send specific comments/recommendations with respect to the proposal.
3. The Director, Technical Education, vide Office Order dated 21.09.2022, constituted a Committee comprising of Associate Professor, Assistant Professor, Government Pharmacy College, Kangra, at Nagrota Bagwan, H.P., to verify necessary details like staff, funds, land, audit, administrative clearances and pending Court cases/litigation etc. of the petitioner Society, and also to verify facts at ground level in view of latest Pharmacy Council of India norms and submit report alongwith supporting documents within a week to the Director.
4. In the meanwhile, Petitioner-Society applied to the Himachal Pradesh Technical University, Hamirpur, H.P., for issuance of letter of consent of Affiliation Examining Authority for starting new course M. Pharmacy in Pharmacology for 15 seats from the Session 2023-2024, vide communication dated 26.09.2022, alongwith deposit of fee of `29,500/- with Himachal Pradesh Technical University (Annexure P-3 Colly).
5. Vide communication dated 11.10.2022 (Annexure P-
4), Himachal Pradesh Technical University, communicated consent of affiliation for the courses subject to fulfillment of following conditions:-
::: Downloaded on - 28/07/2023 20:49:05 :::CIS 3"1. No Objection Certificate from the State Government.
2. Approval of Pharmacy Council of India.
3. Creation of the required infrastructure/facilities i.e. Labs, Class Rooms, Examination Hall, Faculty etc. for .
running the course successfully.
4. Fulfillment of all the Himachal Pradesh Technical University norms/standards.
6. After verifying, by way of physical inspection, infrastructure facility i.e. Labs, Class Rooms, Examination Hall, Faculty etc. as per norms/standards of Himachal Pradesh Technical University, as well as other relevant factors notified in the Office Order dated 21.09.2022, it was informed that Petitioner-Society has adequate infrastructure for running 2 years M.Pharmacy course in Pharmacology with further opinion recommending the grant of NOC to start above course by the Petitioner-Society. The aforesaid report of Committee was placed before the Scrutiny Committee constituted at Directorate level, and the Scrutiny Committee in its Meeting held on 11.10.2022 examined and scrutinized the documents of Petitioner-Society supplied by the Field Inspection Committee to process the NOC case of Petitioner-Society proposed to start M. Pharmacy courses in Pharmacology. The Scrutiny Committee recommended the case for issuance of NOC as proposed.
7. After taking into consideration recommendation of Field Inspection Committee and Scrutiny Committee, the Director, Technical Education, vide communication dated 14.10.2022 (Annexure P-5) recommended for issuance of ::: Downloaded on - 28/07/2023 20:49:05 :::CIS 4 necessary NOC to start 2 years M. Pharmacy courses in Pharmacology by Petitioner Society.
8. Till May 2022, matter remained pending with the .
respondents-State and, therefore, petitioner-Society was constrained to file present petition on 10.05.2023 seeking direction to the respondents to grant NOC to the Petitioner-
Society to start M. Pharmacy in Pharmacology from Session 2023-2024.
9. In response, on 16.05.2023, Director Technical Education, communicated to learned Advocate General that matter regarding issuance of approval for running course in reference was under active consideration of higher authorities.
The aforesaid instructions were imparted on the basis of communication received by the Director from the Secretary (Technical Education) to the Government of Himachal Pradesh, vide communication dated 15.05.2023, whereupon, this Court had passed following order on 23.05.2023:-
"In the instructions placed on record on behalf of respondents, it has been informed that matter is under active consideration of higher authorities. Instructions have been imparted by the Secretary (Technical Education & Vocational & Industrial Training) to the Government of Himachal Pradesh. We failed to understand which is higher authority than the Secretary.
Be that as it may, Secretary concerned is directed to take a decision in the matter on or before 31.05.2023 and impart proper instructions to the office of Advocate General for placing the same on record.
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10. After passing of the aforesaid order, vide communication dated 29.05.2023, it was informed by the Director that proposal of Petitioner-Society has been rejected .
vide letter dated 29.05.2023. Letter dated 29.05.2023 received by the Director from Secretary (Technical Education) was also placed on record, contents whereof, read as under:-
"I am directed to refer to your letter No.STV(TE) H-F (5)45-Shva Pharmacy-2018/97154 dated 14.10.2022 on the subject cited above and to convey that matter was examined at Government level and after due consideration it was rejected."
11. As there was no reason assigned for rejection communicated vide aforesaid communication placed on record, therefore, Division Bench, vide order dated 02.06.2023, had directed to produce the record relating to the rejection of the case of the petitioner. Thereafter, matter was adjourned and detailed reply was also filed on behalf of the respondents on 21.07.2023, alongwith communication dated 29.05.2023, communicating rejection of the proposal. In reply other reasons were also assigned for not granting NOC.
12. Record has also been made available for perusal.
13. On perusal of record as well as averments in the reply, it is found that it is case of the respondents that proposal for granting NOC has been rejected on the ground that there are 2 Institutes affiliated to the Himachal Pradesh Technical University, running courses of Masters in Pharmacy in Pharmacology and 4 other Universities i.e. Shoolini University, ::: Downloaded on - 28/07/2023 20:49:05 :::CIS 6 Bahara University, IEC University and Baddi University, are also running same courses in the State of Himachal Pradesh and there is very low admission against intake capacity of these Institutions .
in the course concerned and, therefore, it is not justified to issue NOC to the Petitioner-Society.
14. Certain other grounds have also been taken in the reply for rejection of proposal of the Petitioner-Society, but no such ground or reason has been found to be considered in the record of the respondents. Therefore, all those grounds taken in the reply are not sustainable for justifying the rejection of proposal of the Petitioner-Society.
15. Record reveals that up to level of Secretary (Technical Education), matter was considered and recommended for NOC. However, the same has been rejected by the Hon'ble Minister-in-Charge, who is stated to be Competent Authority to approve the case for according NOC to start M. Pharmacy course by the Petitioner-Society. The Hon'ble Minister has rejected the proposal on the ground that Institute affiliated to Himachal Pradesh Technical University, L.R. Institute and Laureate Insitute of Pharmacy, Dehra, are running the same courses, wherein against intake of 24 seats admissions during 2021-2022 and 2022-2023, there were only of 17 and 9 students respectively, which is quite low. Another reason assigned for rejecting the case is that the same course is already being run in Shoolini University, Solan, IEC University and Baddi University.
::: Downloaded on - 28/07/2023 20:49:05 :::CIS 716. In reply to the petition, a Chart of Institutions, running the same courses, has also been drawn indicating the admissions of students in the course concerned in various .
Institutions. The Chart indicates that number of students admitted in the courses is fluctuating since academic Session 2021-2022. In 2021-2022, 17 students took admission in L.R. Institute and Laureate Institute of Pharmacy, wherein in Laureate Institute, against 15 seats, 13 students were admitted. In 2022- 2023 also, 8 students were admitted in Laureate Institute. Table indicates that only 3 seats were filled in Bahara University, against permissible intake of 12 seats. However, in other Universities, the admission of students against the permissible intake is quite good. In Shoolini University, 12 students took admission against 18 seats. In IEC University, 15 students took admission against 15 seats and in Baddi University, 14 students took admission against 15 seats.
17. The aforesaid information indicates that admission of students against the intake varies from Institute to Institute and there is no uniform pattern in filling up the seats in the course concerned. Therefore, reasoning that admission in the courses in the State are very low is contrary to the factual position. In the reason for rejection, it has also been mentioned that Baddi University, Shoolini University and IEC University are also running the same courses. Record reveals that admissions in the courses in these Institutes is almost nearer to the intake capacity.
::: Downloaded on - 28/07/2023 20:49:05 :::CIS 8Therefore, to say that it is not justified to grant NOC for running same course, is contrary to the facts.
18. The matter was placed before the Hon'ble Minister-in-
.
Charge by the Secretary (Technical Education) on 20.02.2023.
Thereafter, it remained pending till 26.05.2023, when application of the petitioner was rejected by assigning reasons recorded hereinabove.
19. It has been contended on behalf of the State that to adopt a Policy and to accept or reject the proposal for starting new course in an Educational Institution is prerogative of the Government and, therefore, present petition deserves to be dismissed.
20. It is true that in Policy decisions, Courts have very limited scope for interference, but in present matter, decision taken by the Hon'ble Minister does not appear to be based on any Policy of the State. Had it been so, then definitely from the very initial stage of consideration of proposal such information would have been made part of the record to assess suitability of issuance of NOC.
21. Policy decision by the Government is taken in collective manner. Personal opinion of the person based on sudden thought sparked at the spur of moment in the mind of such person holding position in Government, does not become the Policy of the State. "Policy" does not mean sweet will of or whims and fancy of the person holding the position. Admittedly, there is no black and white Policy decision that in case of no ::: Downloaded on - 28/07/2023 20:49:05 :::CIS 9 admission in courses in Educational Institutions, those courses are to be closed, discontinued or not permitted to be started by fresh applicant institutions. Therefore, decision of rejection by .
the Hon'ble Minister is amenable to the jurisdiction of Judicial Review conferred upon the High Court under Article 226 of the Constitution of India.
22. Decision of rejection is not based upon any survey, indicating that as on date there is no requirement of M. Pharmacy in Pharmacology in the country or a saturation point has arisen with respect to the number of persons available with degree of M. Pharmacy in Pharmacology.
23. It is also pertinent to mention that it is not stand of the respondents in the reply or in arguments that State has taken Policy decision not to grant NOC for running courses in Educational Institutions, in which admission of students against intake capacity is low. Admission by the students in a particular course in an Institution depends upon reputation, quality of education and other facilities maintained by an Institute.
Therefore, in given facts and circumstances, for low admission in other Institutions, cannot be a plausible reason for rejecting the case of the petitioner for granting NOC to run courses in reference.
24. It has been informed that first round of counselling for admission to the course was held on 23.07.2023, but for want of NOC Petitioner-Society could not participate in the same. Now, second round of conselling for the session 2023-2024 is ::: Downloaded on - 28/07/2023 20:49:05 :::CIS 10 scheduled on 01.08.2023. It has been further submitted that in case NOC is granted to the Petitioner-Society prior to second round of counselling, the Petitioner-Society would be able to .
participate in the second round of counselling.
25. I am of the considered opinion that reason assigned for rejecting the case for granting NOC is based on extraneous and irrelevant consideration and, thus, is not sustainable.
Accordingly, the same is quashed and set aside. Respondent No.1 is directed to issue NOC to the Petitioner-Society immediately, latest by 31.07.2023 (11.00 a.m.), entitling the Society for all consequential benefits for all intents and purposes.
26. Learned Deputy Advocate General is directed to communicate gist of this order to the Secretary (Technical Education), Himachal Pradesh, for ensuring compliance in time.
27. Petition is allowed and disposed of in aforesaid terms.
28. Pending application(s), if any, also stand disposed of.
29. Parties are permitted to produce a copy of this order, downloaded from the web-page of the High Court of Himachal Pradesh, before the authorities concerned, and the said authorities shall not insist for production of a certified copy but if required, may verify it from Website of the High Court.
(Vivek Singh Thakur), Judge.
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