L. J. Institute Of Pharmacy vs Union Of India on 19 July, 2021

[Cites 3, Cited by 0]

Gujarat High Court

L. J. Institute Of Pharmacy vs Union Of India on 19 July, 2021

Bench: N.V.Anjaria

      C/SCA/9506/2016                                         ORDER DATED: 19/07/2021


            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 9506 of 2016
                                  With
            CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2021
             In R/SPECIAL CIVIL APPLICATION NO. 9506 of 2016
==========================================================
                           L. J. INSTITUTE OF PHARMACY
                                        Versus
                             UNION OF INDIA & 3 other(s)
==========================================================
Appearance:
MR DC DAVE, SR. ADVOCATE WITH MR UDAYAN P VYAS(1302) for the
Petitioner(s) No. 1
MS NIDHI VYAS, AGP (1) for the Respondent(s) No. 4
MR SIDDHARTH DAVE FOR MR DEVANG VYAS(2794) for the
Respondent(s) No. 1,3
MRS NISHA M PARIKH(2397) for the Respondent(s) No. 2
MR ROHAN LAVKUMAR(9248) for the Respondent(s) No. 4
==========================================================
 CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA

                               Date : 19/07/2021
                                   ORAL ORDER

The above Special Civil Application came to be filed by the petitioner L.J. Institute of Pharmacy, who was aggrieved by the action on part of the fourth respondent - Admission Committee for Professional Courses (Technical), Gujarat State, to permit for the petitioner institute the intake capacity of 100 students only in faculty of pharmacy at the Graduation as well as Post Graduation level, for the Academic Year 2016-17.

2. The petitioner had come up with the case that All India Council for Technical Education (AICTE) - respondent No.2 in the petition, had approved for the petitioner institute total intake of 240 students. However, acting at the instance of respondent No.3 - Pharmacy Council of India, such intake was restricted by the Admission Committee to 100 students only.

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C/SCA/9506/2016 ORDER DATED: 19/07/2021 2.1 Following principal prayers were made in the petition.

"(A) ... ... ... commanding Respondent Nos.3 and 4 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 ensuring academic year 2016-17 as 240 students on the basis of the approval thereof by Respondent No.2 and, thereupon, be pleased to command Respondent No.4 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 the 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 11th September, 2014 (Exhibit - B) to the Memorandum of the present Petition;"

3. The entire premise of the petitioner's case was thus that All India Council for Technical Education having granted approval to admit 240 students, it could not have been restricted as above. The issue sought to be agitated was that the intake approved by AICTE as against allowed by the Pharmacy Council would prevail.

3.1 The question of interim relief was argued at length and was considered by the Court after recording rival submissions as reflected in order dated 25th July, 2016 passed in the Special Civil Application. By the aforesaid order, Rule came to be issued in the petition making it returnable on 26th September, 2016 and following directions were passed, extracted from paragraph No.7 of the order.

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C/SCA/9506/2016 ORDER DATED: 19/07/2021 "(i) The petitioner shall be allowed to admit students as per the total intake of 240 admissions as per the approval granted by All India Council for Technical Education in its communication dated 05 th April, 2016. In all 240 students are permitted to be admitted bifurcated into 180 students in the first shift and 60 students in the second shift;

(ii) Admissions to the students beyond 100 seats shall be treated as provisional admissions;

(iii) The petitioner shall clearly inform the students who are at serial number on merits 101 onwards that their admission subject to outcome of the present petition, so that the students are put to notice about the pendency of the present petition;

(iv) Pharmacy Council of India is not precluded from making such inquiry as it seeks by exercising its powers under Section 12 of the Act and thereby consider the question of approval to the petitioner in respect of higher intake during the pendency of the petition. However, any such decision taken adverse to the petitioner, shall be subject to final outcome of the petition.

(v) The petitioner shall file necessary undertaking/affidavit that it will abide by the prescriptions of All India Council for Technical Education, and if prescribed further by the Pharmacy Council of India."

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].

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 Page 3 of 7 Downloaded on : Sun Jan 16 01:09:40 IST 2022 C/SCA/9506/2016 ORDER DATED: 19/07/2021 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 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 Page 4 of 7 Downloaded on : Sun Jan 16 01:09:40 IST 2022 C/SCA/9506/2016 ORDER DATED: 19/07/2021 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 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 Page 5 of 7 Downloaded on : Sun Jan 16 01:09:40 IST 2022 C/SCA/9506/2016 ORDER DATED: 19/07/2021 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.

4.6 It appears that the petitioner has filed the captioned Civil Application in view of the above observations made by the Supreme Court whereby it has prayed to dispose of the Special Civil Application in terms of the aforementioned interim order dated 25th July, 2016. It was further prayed to clarify that students who have been admitted in the set up of the applicant-original petitioner during the Academic Year 2016-17 pursuant to the said interim order, are entitled to the benefit of being registered as Pharmacists as per the provisions of the Pharmacy Act, 1948.

4.7 Learned advocate Mr.Siddharth Dave appearing for respondent Nos.1 and 3, learned advocate Ms.Nisha Parikh appearing for respondent No.2 and learned advocate Mr.Rohan Lavkumar who appears for respondent No.4, were not in a position to dispute the above position of law emanating from the decision of the Supreme Court in Dr. S.K. Toshniwal Educational Trusts Vidarbha Institute of Pharmacy (supra) and highlighted from paragraph No.88 thereof.

5. In the aforesaid view, even as the main writ petition being Special Civil Application Page 6 of 7 Downloaded on : Sun Jan 16 01:09:40 IST 2022 C/SCA/9506/2016 ORDER DATED: 19/07/2021 No.9506 of 2016 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 dated 25th July, 2016, shall not be adversely affected and they will be entitled for registration under the provisions of the Pharmacy Act, 1948.

6. Special Civil Application No.9506 of 2016 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. In view of dismissal of the petition and above observations, the Civil Application does not require any further order.

(N.V.ANJARIA, J) ANUP Page 7 of 7 Downloaded on : Sun Jan 16 01:09:40 IST 2022

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