Delhi High Court - Orders
Shaheed Teg Bahadur College Of Pharmacy vs Pharmacy Council Of India on 20 December, 2021
Author: Prateek Jalan
Bench: Prateek Jalan
$~9 (2021 Cause List)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 175/2021
SHAHEED TEG BAHADUR
COLLEGE OF PHARMACY ..... Petitioner
Through: Mr. Sanjay Sharawat, Advocate
versus
PHARMACY COUNCIL OF INDIA ..... Respondent
Through: Mr. Maninder Singh, Sr. Adv. with
Mr. Zoheb Hossain, Mr. Prabhas
Bajaj, Mr. Ajay Sabharwal & Ms.
Tulika Gupta, Advocate for the
PCI.
CORAM:
HON'BLE MR. JUSTICE PRATEEK JALAN
ORDER
% 20.12.2021 The proceedings in the matter have been conducted through hybrid mode [physical and virtual hearing].
CM APPL. 41337/2021 (for directions)
1. Learned counsel for the parties have placed on record an order dated 17.12.2021 passed by the Supreme Court in SLP Civil No. 19671/2021 [Pharmacy Council of India vs. Rajeev College of Pharmacy & Ors] by which the Supreme Court has issued notice in the challenge by the Pharmacy Council of India ["PCI"] to the judgment of the Division Bench of the Karnataka High Court dated 09.11.2021 in WA No. Signature Not Verified Digitally signed W.P.(C) 175/2021 Page 1 of 6 By:HARMINDER KAUR Signing Date:21.12.2021 20:01:40 746/2020 [Pharmacy Council of India vs. Rajeev College of Pharmacy]. However, no interim order has yet been passed by the Supreme Court.
2. Mr. Sanjay Sharawat, learned counsel for the petitioner, relies upon an interim order dated 09.12.2021, passed by the Chhattisgarh High Court, in circumstances which appear to be similar to the present batch of petitions. By the said order, in Writ Petition (Civil) No. 3766/2021 ["Chouksey College of Pharmacy & Another Vs. Pharmacy Council of India & Others"], the Chhattisgarh High Court has considered the judgment of the Karnataka High Court and passed the following interim directions in favour of the petitioner therein:
"xxxx xxxx xxxx In the alternative, the Petitioners have sought for an interim direction to the Respondents to facilitate the Petitioners to apply for necessary approval and sanction for opening of a new Pharmacy institution imparting B.Parm and D.Pharm courses and further to direct the Respondents to accept, process, scrutinise and submit a report on the basis of the scrutiny so far as the entitlement for grant of necessary sanction and approval for the opening of a new Pharmacy institution are concerned.
xxxx xxxx xxxx The State Government also has granted the NOC to the Petitioners and thereafter the Petitioners' establishment approached the Respondent No.2 University for grant of affiliation. The Respondent No.2-University in turn initially ordered to get the Petitioners establishment inspected for the purpose of considering the requisite affiliation. However, the Respondent No.2 meanwhile vide Order dated 10.8.2021 communicated the Petitioners that on account of the two impugned Orders passed by Respondent No.1 whereby there is a total moratorium/ban imposed by Respondent No.1 so far as the opening of the new Colleges and Institutions Signature Not Verified Digitally signed W.P.(C) 175/2021 Page 2 of 6 By:HARMINDER KAUR Signing Date:21.12.2021 20:01:40 imparting Pharmacy courses is concerned and therefore the application for affiliation was declined to be processed as of now by the Respondent No.2, which has led to the filing of the present Writ Petition.
xxxx xxxx xxxx Considering the aforesaid objects and reasons, if we look into the explanations carved out vide the Order dated 9.9.2019 (Annexure P-4), it would reflect that the relaxations granted by it prima facie seem to be in self contradiction to the earlier Order dated 17.7.2019. Further, it also leads to a situation where the existing Colleges are permitted to go in for expansion and increasing in their intake capacity. It will also apply to States with less than 50 institutions imparting B.Pharm and D.Pharm courses. The said would also not be applicable upon Government institutions, in addition to its non-availability in the North Eastern region. To add more, it has also been relaxed in those cases where the institutions had applied for in the previous academic session and even in those cases where their applications have either been rejected or were not put in for inspection, they were allowed for the subsequent academic session.
xxxx xxxx xxxx Prayer of the Petitioners at this juncture is to consider their claim for the next academic session i.e. 2022-23. Contention of the Petitioners is that unless the formalities are completed in advance as regards the inspection of the establishment to check the requisite infrastructure facilities made available by the Petitioners' establishment for imparting of the aforesaid Courses and subject to pointing out any deficiencies if any, the Petitioners rectifying the deficiencies and shortcomings, the Petitioners at a later stage can be considered for grant of affiliation and permission for running the Institutions for the aforesaid two Courses forthwith.
According to the Petitioners, if the said inspection and other formalities are not completed in advance, then at a later stage if at all if the Respondent No.1 withdraws the Signature Not Verified Digitally signed W.P.(C) 175/2021 Page 3 of 6 By:HARMINDER KAUR Signing Date:21.12.2021 20:01:40 moratorium, then the process of inspection and other formalities thereafter would take some time and it would again result in the Petitioners' loosing another substantial portion of the next academic session as well. Thus, it would be in the larger interest of the Institutions and it is for these reasons that the Petitioners have prayed for an interim relief as of now permitting them to fill up the requisite forms to be submitted before the Respondent No.1 by opening the portal and the forms in turn may be scrutinised by Respondent No.1 and necessary formalities as regards the required process fee and other pre-deposits like payment of statutory fees etc., be accepted and to submit a feasibility report so that immediately after the withdrawal of the moratorium or the allowing of the Writ Petition, whichever is earlier, the further proceeding for grant of affiliation and permission for starting the Courses can be expedited.
It is relevant at this juncture to mention here that recently before the High Court of Karnataka the Orders dated 17.7.2019 and 9.9.2019 of the Pharmacy Council of India were subjected to challenge in W.P. No.52868/2019 and other connected matters. The High Court of Karnataka allowed the said Writ Petitions holding the two Orders (which have been challenged in the present Writ Petition also) to be bad in law and are therefore invalid.
The Karnataka High Court's Order dated 19.11.2020 was subjected to challenge before the Division Bench of the Karnataka High Court in W.A. No.746/2020 which also finally stood dismissed on 9.11.2021 affirming the Order of the learned Single Bench.
Thus, as on date, there is a positive decision from a Court of law on identical set of facts passed by the Karnataka High Court which has also been subjected to test in an appeal before the Division Bench which too has affirmed the view of the learned Single Bench.
The Pharmacy Council of India thereafter has preferred the SLP which came up for hearing before the Hon'ble Supreme Court on 06.12.2021. However, no interim Signature Not Verified Digitally signed W.P.(C) 175/2021 Page 4 of 6 By:HARMINDER KAUR Signing Date:21.12.2021 20:01:40 relief has been granted by the Apex Court in the said case till now.
Given the said facts and taking into consideration the two judgments of the Karnataka High Court, prima facie, this Court is of the opinion that the Petitioners would be entitled for some interim protection.
Accordingly, purely as an interim measure, it is directed that the Respondents shall permit the Petitioners to submit their application required for the necessary permission and approval and also for grant of necessary affiliation for the academic session 2022-23.
The Respondents shall allow the Petitioners to submit their application either by opening the portal and accepting the application or, in the alternative, receiving the application by any other mode permissible.
The Respondents are further directed to process the application and conclude the requisite formalities of inspection etc., except for the granting of permission and approval for going in for the admissions.
It goes without saying that the Petitioners would also liable to pay all the requisite fees and other charges required for the completion of necessary inspection and other requisite formalities etc. So far as the final order of approval and permission as is required in terms of the Pharmacy Act is concerned, the same shall be undertaken after the final outcome of the present Writ Petition or the withdrawal of the Orders by the Pharmacy Council of India, whichever is earlier."
[Emphasis supplied.]
3. Mr. Sharawat presses for an interim order on similar lines, so that the petitioner may apply for permission for its institution in the year 2022-23.
4. Mr. Maninder Singh, learned Senior Counsel, appearing on behalf Signature Not Verified Digitally signed W.P.(C) 175/2021 Page 5 of 6 By:HARMINDER KAUR Signing Date:21.12.2021 20:01:40 of the PCI, seeks an opportunity to take instructions in this regard and apprise the Court on the next date of hearing.
5. List on 23.12.2021.
PRATEEK JALAN, J DECEMBER 20, 2021 'Bp'/ Signature Not Verified Digitally signed W.P.(C) 175/2021 Page 6 of 6 By:HARMINDER KAUR Signing Date:21.12.2021 20:01:40