Rajasthan High Court - Jodhpur
M/S Fatehpuria Dharmarth Trust, Merta ... vs The Institute Of Advance Studies In Edu. ... on 26 March, 2021
Equivalent citations: AIR 2021 (NOC) 537 (RAJ.), AIRONLINE 2021 RAJ 4
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 15937/2019
1. M/s Fatehpuria Dharmarth Trust, Merta City, Through Its
Administrative Officer Through Nitesh Sharma S/o Shri
Girdhari Lal Sharma, Aged About 28 Years, Resident Of
Merta City, District Nagaur, Rajasthan.
2. Charbhuja Chemist College, Merta City, Through Its
Principal Shri Ram Pareek S/o Shri Ashok Kumar Pareek,
Aged About 38 Years, Resident Of Merta City, Nagaur,
Rajasthan.
----Petitioners
Versus
The Institute Of Advance Studies in Education (IASE)(Deemed
University), Gandhi Vidhya Mandir, Sardarshahar, Rajasthan.
----Respondent
For Petitioner(s) : Mr. Manoj Bhandari
For Respondent(s) : Mr. Himanshu Upadhyay (on VC) with
Mr. Himanshu Shrimali
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Judgment Reserved on 09/03/2021 Pronounced on 26/03/2021
1. In wake of onslaught of COVID-19, abundant caution is being taken while hearing the matters in Court.
2. This writ petition under Article 226 of the Constitution of India has been preferred claiming the following reliefs:
"i) By an appropriate writ, order or direction, the communication and order dated 28th April, 2019 (Annex-11) passed by the respondent university may kindly be declared illegal and be quashed and set aside.
ii) By an appropriate writ, order or direction, the respondents be directed to permit the petitioner to run the Diploma Course in Pharmacy which is being run by the petitioner since 2005 being a constituent unit of the respondent Deemed University.
iii) By an appropriate writ, order or direction, the respondent university be directed to permit the petitioner to hold the (Downloaded on 26/03/2021 at 09:17:51 PM) (2 of 6) [CW-15937/2019] examination for the first year for the Academic Session 2018-19 and after completion of Second Year Course for the Academic Session 2017-18, which is to be conducted forthwith and to approve the admission of 60 students, which have been admitted for the academic session beginning from 2019-20.
iv) Any other appropriate order or direction which this Hon'ble Court may deem fit, just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioners.
v) Costs of the writ petition may kindly be awarded to the petitioners."
3. Learned counsel for the petitioners submitted that the petitioner No.1 is a registered private Trust constituted for the purpose of promoting technical and higher education. Learned counsel further submitted that the petitioner No.2, being run by the said Trust, is a constituent College of the respondent-Institute of Advance Studies in Education (IASE) (Deemed to be University), Sardarshahar.
4. The bone of contention in the present case is a Diploma Course in Pharmacy being run by the petitioner-College, for which, as per learned counsel for the petitioners, the approval had already been granted by the Pharmacy Council of India to the petitioner-College to run the said Course through the Deemed to be University.
5. Learned counsel for the petitioners also submitted that however, a communication was sent by the respondent-Deemed to be University in the year 2019 to the effect that it has to be clarified whether the Deemed to be University is entitled to conduct Diploma Courses in Pharmacy through a constituent College in a Distance Education Mode.
6. Learned counsel for the petitioners has referred to the order dated 22.01.2018 passed by the Hon'ble Supreme Court in the (Downloaded on 26/03/2021 at 09:17:51 PM) (3 of 6) [CW-15937/2019] case of Orissa Lift Irrigation Corp. Ltd. Vs. Rabi Sankar Patro & Ors. [M.A. Nos.1795-1796 of 2017 (seeking clarification and modification of the directions issued in the judgment rendered on 03.11.2017) in Civil Appeals No.17869-17870 of 2017] to contend that the judgment delivered by the Hon'ble Supreme Court in the said case on 03.11.2017 is not applicable insofar as the Diploma Courses run through the Deemed to be University are concerned.
7. Learned counsel for the petitioners further submitted that the petitioner-College ought to be permitted by the respondent to run the Diploma Course in Pharmacy.
8. This Court enquired from the learned counsel for the petitioners as to what was the stand of the University Grants Commission (UGC) as well as the Pharmacy Council of India (PCI), as they were the approving authorities, which need to conform the power of a Deemed to be University to permit a constituent College to conduct a Course through the Distance Education Mode. Learned counsel for the petitioners however, submitted that the UGC and the PCI were not the necessary parties.
9. On the other hand, learned counsel for the respondent- Deemed to be University, submitted that the respondent being a Deemed to be University is bound to follow the guidelines/norms laid down by the UGC in its true letter and spirit. Learned counsel also submitted that in view of the judgment rendered on 03.11.2017 by the Hon'ble Supreme Court in Orissa Lift Irrigation Corp. Ltd. (supra) as well as the existing guidelines/ norms issued by the UGC, the respondent has, at the initial stage itself, duly communicated to the petitioner-College not to admit the students in the Course.
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10. Learned counsel for the respondent further submitted that existing the UGC guidelines/norms do not permit the Deemed to be Universities to allow running of the Courses outside their campus, at a distant place. Learned counsel thus, submitted that the petitioner-College, even after the necessary communication, as aforementioned, sent to it by the respondent-Deemed to be University, had acted in contravention of the guidelines/norms issued by the UGC as well as the existing law, particularly, the judgment dated 03.11.2017 rendered by the Hon'ble Supreme Court in Orissa Lift Irrigation Corp. Ltd. (supra).
11. After hearing learned counsel for the parties at length as well as on carefully examining the record of the case, alongwith the precedent law laid down by the Hon'ble Supreme Court in the aforementioned case, this Court is of the firm opinion that in absence of impleadment of the PCI as well as the UGC as a party respondents in this case, it cannot be determined by this Court as to what would be the validity of a constituent College running a Pharmacy Course with the approval of the Deemed to be University. Moreover, since the Distance Education Mode itself is under a cloud, therefore, without proper clarity of the pleadings and joinder of the necessary parties in this case, the effective adjudication of the matter is not possible.
12. This Court also keeps in observation that in Orissa Lift Irrigation Corp. Ltd. (supra) (decided on 03.11.2017), the Hon'ble Apex Court has deprecated the practice of continuance of all the Distance Education Centres being run through the Deemed to be Universities all over the country.
13. The Hon'ble Supreme Court, in the case of Public Service Commission, Uttaranchal Vs. Mamta Bisht & Ors., reported (Downloaded on 26/03/2021 at 09:17:51 PM) (5 of 6) [CW-15937/2019] in (2010) 12 SCC 204 has observed that more so, proviso to Order 1 Rule 9 of the Code of Civil Procedure, 1908 provides that non-joinder of the necessary party be fatal, and though undoubtedly, the provisions of CPC are not applicable in writ jurisdiction by virtue of the provisions of Section 141 CPC, but the principles enshrined therein are applicable.
14. In the case of Kasturi Vs. Iyyamperumal & Ors., reported in (2005) 6 SCC 733, the Hon'ble Supreme Court has laid down that no effective order can be passed in the absence of necessary party.
15. In Prabodh Verma & Ors. Vs. State of Uttar Pradesh & Ors., reported in (1984) 4 SCC 251, the Hon'ble Supreme Court has observed that a High Court ought not to decide a writ petition under Article 226 of the Constitution of India without the persons who would be vitally affected by its judgment being before it as the respondents or at least some of them being before it as respondents, in representative capacity if their number is too large. In that case, it was further observed that if the petitioner is not inclined to implead the necessary parties as respondents, the writ petition ought to be dismissed for non-joinder of necessary parties.
16. In K.H. Siraj Vs. High Court of Kerala, reported in (2006) 6 SCC 395, the Hon'ble Supreme Court has expressed the view that the writ petition has to fail for non-joinder of necessary parties also.
17. In Udit Narain Singh Malpaharia Vs. Additional Member, Board of Revenue, Bihar & Anr., reported in AIR 1963 SC 786, which has also been relied upon in the judgment rendered in Public Service Commission, Uttaranchal (supra), (Downloaded on 26/03/2021 at 09:17:51 PM) (6 of 6) [CW-15937/2019] the Hon'ble Supreme Court has observed that it is well settled principle of law that a necessary party is one without whom no order can be made effectively; a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding.
18. This Court, while hearing the matter, had requested the learned counsel for the petitioners to implead UGC and PCI as party in this case, but the learned counsel submitted that their impleadment is not required.
19. Thus, for the foregoing discussion and the precedent law laid down by the Hon'ble Apex Court in the aforementioned judgments, this Court is also of the considered opinion that since the UGC as well as the PCI have not been arrayed as party respondents in this case and it is settled law that in absence of necessary parties, the effective and final adjudication of the matter cannot be made, therefore, this Court does not find any reason to make interference in the present writ petition.
20. Consequently, the present writ petition is dismissed. The stay application also stands dismissed. All pending applications stand disposed of accordingly.
(DR.PUSHPENDRA SINGH BHATI),J.
SKant/-
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