Gujarat High Court
L J Institute Of Pharmacy vs Union Of India - Through Secretary on 27 July, 2021
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/20967/2015 ORDER DATED: 27/07/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 20967 of 2015
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L J INSTITUTE OF PHARMACY & 4 other(s)
Versus
UNION OF INDIA - THROUGH SECRETARY & 3 other(s)
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Appearance:
MR DC DAVE, SR. ADVOCATE WITH MR UDAYAN P VYAS(1302) for the
Petitioner(s) No. 1
MR MANRAJ BAROT, AGP (1) for the Respondent(s) No. 4
MR DEVANG VYAS(2794) for the Respondent(s) No. 1,3
MR PY DIVYESHVAR(2482) for the Respondent(s) No. 1,3
MRS NISHA M PARIKH(2397) for the Respondent(s) No. 2
RULE SERVED(64) for the Respondent(s) No. 1,2,3,4
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CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
Date : 27/07/2021
ORAL ORDER
Heard learned senior advocate Mr.D.C. Dave with learned advocate Mr.Udayan Vyas for the petitioner and learned advocate Mr.P.Y. Divheshvar for learned Additional Solicitor General Mr.Devang Vyas for respondent Nos.1 and 3.
2. This Special Civil Application came to be filed by the petitioner - L.J. Institute of Pharmacy who was aggrieved by the action on part of respondent
- Admission Committee, whereby it did not allow the petitioner institution the intake of students in the Pharmacy College as per the seats prescribed by the All India Council for Technical Education (AICTE) for the Academic Year 2015-16. The prayers in the petition were as under.
"(a) ... ... ... commanding Respondent No.4-Admission Committee to treat the total intake of the Petitioner for the concerned course in the discipline of Pharmacy at the level of graduation leading to the educational qualification of B.Pharm for the purpose of admission in the ensuing academic year 2015- Page 1 of 6 Downloaded on : Sun Jan 16 03:35:25 IST 2022
C/SCA/20967/2015 ORDER DATED: 27/07/2021 16 as 240 students on the basis of the approval thereof by Respondent No.2 and, thereupon, be pleased to command Respondent No.4-Admission Committee not to follow any directive in respect of the same from Respondent No.3;
(b) ... ... ... commanding Respondent No.3 not to interfere in the intake of Petitioner approved by Respondent No.2 for the concerned courses in the discipline of Pharmacy at the level of graduation and post graduation leading to the educational qualification of B.Pharm and M.Pharm and, thereupon, be pleased to command Respondent No.3 to annul, its decision, as reflected from its aforesaid communication dated Nil, public notice and communication dated 11th September, 2014"
2.1 It was the case of the petitioner that AICTE had approved intake of 240 students in aggregate in the discipline of Pharmacy at the level of Graduation divided into 180 students in the first shift and 60 students in the second shift. The respondent - Admission Committee refused to permit the petitioner to grant admission to such number of students.
3. In the present petition, detailed interim order dated 22nd December, 2015 was passed by the Court, operation portion of which reads as under.
"2. The matter pertains to endorsement by Respondent No.4 - Admission Committee for Professional Courses (Technical) ["the Committee"]for admission to Degree Pharmacy Course in the petitioner No.1 Institution.
3. As per the case of the petitioners, though intake of the students of the petitioner institution could be said to have been sanctioned for 240 by All India Council for Technical Education - Respondent No.2, however, even if the petitioner institution is to go by the sanction given by the Pharmacy Council, it would be 71 seats whereas the Committee has endorsed admission for 59 seats as per the communication dated 5/8.12.2015 at Page 2 of 6 Downloaded on : Sun Jan 16 03:35:25 IST 2022 C/SCA/20967/2015 ORDER DATED: 27/07/2021 Annexure-L. Learned Senior Advocate Mr. Dave appearing with learned Advocate Mr. Vyas for the petitioners submitted that petitioner no.1 institution has already admitted 61 students by considering intake of 71 students even as per the Pharmacy Council. Mr. Dave submitted that the list given by the Committee has shown names of 61 students, however, enrollment number given are for 57 students and four students for whom enrollment number is not found in the list at annexure-O are the petitioner No.2 to 5 with petitioner No.1 Institution and they would abide by whatever order passed by this Court, if their admissions are endorsed by the Committee.
4. Having heard the learned Senior Advocate Mr. Dave, the Court finds that as per the communication at annexure - L, the Committee has already endorsed admissions for 59 students. However, in the list at annexure - O, four students' enrollment number is not mentioned as stated by Mr. Dave. It is, therefore, difficult for petitioner no.1 institute to consider confirmed admission for two of four students who are petitioner no.2 to 5. Be that as it may, as stated by Mr. Dave, petitioner no.1 institute has admitted 61 students in Pharmacy Degree Course. In view of the contentions raised in the petition that the petitioner no.1 institute is entitled to admit more students at least to the extent of 71 students, petitioner no.2 to 5 at this stage could be given provisional endorsement subject to further orders which may be passed by this Court in the present petition.
5. In view of the above, Notice returnable on 12th January, 2016. Direct Service Today is permitted.
By way of ad-interim relief, it is directed that the respondent No.4 - Committee shall give provisional endorsement to the admissions of petitioner no.2 to 5 in Pharmacy Degree Course subject to further orders which may be passed by this Court."
4. The very question that whether the intake approved by the Pharmacy Council or approved by the AICTE would prevail, which was the main issue in the present petition, came to be considered and decided by the Supreme Court in Pharmacy Council of India v. Dr. S.K. Toshniwal Educational Trusts Vidarbha Institute of Pharmacy [2020 SCC Online SC 296].
Page 3 of 6 Downloaded on : Sun Jan 16 03:35:25 IST 2022C/SCA/20967/2015 ORDER DATED: 27/07/2021 4.1 The Supreme Court laid down the following proposition.
(i) Pharmacy Act, 1948 would prevail over the All India Council for Technical Education Act, 1987. [Paragraph(s) 77 and 87];
(ii) Respondent No.1 - Council will be the competent authority for regulating educational institutions imparting education in the discipline of Pharmacy. [Paragraph9s) 84 and 87];
(iii) All interim orders/final orders by which students were permitted to be admitted as per the intake capacity sanctioned by AICTE are made final. Respondent No.1 - Council is directed to register all students so admitted as pharmacists. [Paragraph 88];
(iv) All pending applications for approval shall be processed by Respondent No.1 - Council in accordance with its own regulations. All educational institutions which have not applied to Respondent No.1 - Council were directed to apply afresh to Respondent No.1 - Council.
[Paragraph 88] 4.2 In other words, the law came to be settled that the Pharmacy Act, 1948 would prevail over the AICTE Act, 1987 and the Pharmacy Council was entitled to prescribe the intake capacity of students at the Graduation and Post Graduation level, and the intake of AICTE, if higher, cannot be acted upon.
4.3 In paragraph No.87 of Dr. S.K. Toshniwal Educational Trusts Vidarbha Institute of Pharmacy (supra), it was held thus, "In view of the above and for the reasons stated above, it is held that in the field of Pharmacy Education and more particularly so far as the recognition of degrees and diplomas of Pharmacy Education is concerned, the Pharmacy Act, 1948 shall prevail. The norms and regulations set by the PCI and other specified authorities under the Pharmacy Act would have to be followed by the concerned Page 4 of 6 Downloaded on : Sun Jan 16 03:35:25 IST 2022 C/SCA/20967/2015 ORDER DATED: 27/07/2021 institutions imparting education for degrees and diplomas in Pharmacy, including the norms and regulations with respect to increase and/or decrease in intake capacity of the students and the decisions of the PCI shall only be followed by the institutions imparting degrees and diplomas in Pharmacy. The questions are answered accordingly." (Para 87) 4.4 Learned senior council Mr.Dhaval Dave with learned advocate Mr.Udayan Vyas for the original petitioner - applicant herein however invited attention of the Court to the following observations.
"Now the next question which is required to be considered is with respect to students already admitted pursuant to the orders passed by this Court and the concerned High Courts. The conflict and the dispute arose because despite refusal by the PCI, the AICTE increased the intake capacity in the respective institutions, which were not approved by the PCI. By the interim orders, this Court and the respective High Courts have directed to allow those students to appear in the examinations and to register them as pharmacists. Such Interim Orders are also made final. Therefore, the present decision shall not affect those students admitted in the increased intake capacity and/or pursuant to the interim orders passed by this Court and/or final judgments and orders passed by the respective High Courts. PCI is therefore directed to give consequential benefit of registration to such students. However, at the same time, all pending applications for increase in intake capacity and/or for recognition and/or approval of course/institutions in the pharmacy shall be as per the provisions of the Pharmacy Act, 1948 and the regulations, if any, thereunder and as per the norms and regulations fixed by the PCI. It is further directed the concerned institutions who increased their intake capacity as approved by AICTE and their increase in intake capacity was not approved by PCI, shall apply afresh for increase in intake capacity and/or evening shift for the next academic year within a period of four weeks from today and their cases for increase in intake capacity and/or applications for recognition and/or applications for approval of the course or evening shift shall be considered by the PCI in accordance with the Pharmacy Act, 1948 and rules and regulations framed therein and the norms prescribed by the PCI." (Para 88) (Emphasis supplied here) 4.5 Therefore, while holding that in the Page 5 of 6 Downloaded on : Sun Jan 16 03:35:25 IST 2022 C/SCA/20967/2015 ORDER DATED: 27/07/2021 field of pharmacy education, the Pharmacy Act shall have to prevail, upon above observations, such students who are admitted by the interim orders during the pendency of the petition because of higher intake prescribed and okayed by the High Courts in the interim orders, having protected, it is clarified by the Supreme Court itself that its decision shall not affect such students and that they shall be entitled to the benefit of registration.
5. In the aforesaid view, even as the main writ petition shall stand liable to be dismissed in view of the observations made in paragraph No.88 by the Apex Court in Dr. S.K. Toshniwal Educational Trusts Vidarbha Institute of Pharmacy (supra), students who came to be admitted to the course of B.Pharm as per the directions in the aforementioned interim order, shall not be adversely affected and they will be entitled for registration under the provisions of the Pharmacy Act, 1948.
6. Special Civil Application is hereby dismissed for their prayers as meritless in view of the decision of the Apex Court in Dr. S.K. Toshniwal Educational Trusts Vidarbha Institute of Pharmacy (supra). Rule is discharged.
7. Petition stands dismissed subject to the above qualification.
(N.V.ANJARIA, J) ANUP Page 6 of 6 Downloaded on : Sun Jan 16 03:35:25 IST 2022