Karnataka High Court
Nitte Education Trust vs Pharmacy Council Of India on 31 August, 2018
Author: B.V.Nagarathna
Bench: B.V. Nagarathna
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF AUGUST, 2018
BEFORE
THE HON'BLE MRS. JUSTICE B.V. NAGARATHNA
WRIT PETITION NO.3483 OF 2018 (EDN-RES)
BETWEEN:
Nitte Education Trust
6th Floor, University Enclave
Medical Sciences Complex
Deralakatte, Mangaluru-575018
Represented by its Administrator
Mr.Rohit Punja
S/o.Late Ramanath Punja
Aged about 56 years. :PETITIONER
(By Sri Reuben Jacob, Adv.)
AND:
Pharmacy Council of India
Combined Council's Building
Kotla Road, Aiwan-E-Ghalib Marg
New Delhi-110002. :RESPONDENT
(By Sri.S.S.Haveri, Adv.)
This Writ Petition is filed under Articles 226 & 227 of
the Constitution of India praying to quash the
communication dated 03.01.2018 issued by the
respondent vide Annexure-F and direct the respondent to
consider the petitioner's proposal/application dated
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05.12.2017 for fresh affiliation for new D-Pharm and B-
Pharm courses commencing from the Academic Year
2018-19 vide Annexure-A.
This Writ Petition coming on for Preliminary Hearing
in 'B' Group this day, the court made the following:
ORDER
Though this writ petition is listed for preliminary hearing-B Group, with the consent of learned counsel on both sides, it is heard finally.
2. Petitioner has assailed communications bearing No.17-46(71)KRN/2017-PCI and 32-1(71)KRN/2017-PCI 60248 dated 03.01.2018 issued by the respondent(Annexure-F).
3. Petitioner has sought a direction to the respondent to consider its proposal / application dated 05.12.2017 seeking fresh approval to commence new D Pharm and B Pharm courses at Nitte School of Pharmaceutical Sciences at Yelahanka, Bengaluru for the Academic Year 2018-2019 vide Annexure-A. 3
4. It is the case of the petitioner that it is a registered Educational Trust having several educational institutions. Now petitioner - Trust intends to establish a Pharmacy College in Bengaluru and all necessary steps have been taken by providing infrastructure facilities and amenities. Petitioner - Trust has an existing building for starting a Pharmacy College, to award D Pharm and B Pharm qualification. That for starting a new Pharmacy College, the following approvals / affiliations are required:
(a) Fresh affiliation from the Pharmacy Council of India.
(b) Approval from All India Council for Technical Education.
(c) Affiliation from Rajiv Gandhi University of Health Sciences in respect of B-Pharm courses.
(d) Permission from the State Government (Board of Examining Authority) for D-Pharm courses.
5. According to the petitioner it has taken all steps to put up infrastructural facilities, has appointed staff, obtained consent letters from the concerned personnel. Petitioner made an application to the 4 respondent - Pharmacy Council of India to grant fresh affiliation for commencement of D Pharm and B Pharm courses from the Academic Year 2018-2019. Petitioner submitted its application to the respondent - Pharmacy Council of India (hereinafter referred to as 'respondent- Council') on 05.12.2017 to commence a College of Pharmacy at Govindapura,Gollahally, Yelahanka, Bengaluru North Taluk, Bengaluru-560 064. Petitioner was surprised to receive communication dated 03.01.2018 on 08.01.2018, sent by the respondent-Council stating that it had rejected the proposal of the petitioner as it was received beyond the cut-off date which was 31.08.2017. Petitioner has relied upon the application / proposal dated 05.12.2017, public notice dated 17.11.2017, communication dated 04.01.2018 undated resolution No.02.277.216 of the respondent-Council, undated AICTE public notice and communication dated 03.01.2018 which are produced as Annexures - A to F. Being aggrieved by the rejection of the petitioner's application seeking approval for commencement of D Pharm and B Pharm 5 courses from the Academic Year 2018-2019 vide Annexure-F dated 03.01.2018, petitioner has preferred this writ petition.
6. I have heard the learned counsel for the petitioner and learned Standing Counsel for the respondent-Council and perused the material on record of various dates.
7. During the course of submissions, learned counsel for the respondent-Council filed its counter affidavit dated 28.08.2018, yesterday(30.08.2018), in response to which learned counsel for the petitioner has filed its affidavit today. The counter affidavit of the respondent-Council and the affidavit of the petitioner are taken on record.
8. Learned counsel for the petitioner contended that the respondent-Council did not notify either on its website or through public notice by way of newspaper publication that the last date for submission of applications 6 seeking approval for commencement of D Pharm and B Pharm Courses was 31.08.2017. He contended that the petitioner was not aware of the fact that 31.08.2017 was the last date for submission of application seeking approval for the commencement of the said courses and that in the absence of having knowledge of the said fact, it submitted its application on 05.12.2017 but by communication dated 03.01.2018 (Annexure-F) the same has been rejected by stating that the petitioner's proposal was received long after the cut-off date which was 31.08.2017. Learned counsel contended that on the website of the respondent- Council it has published a list of applications which are received after the cut-off date which is referred to in the impugned communication dated 03.01.2018. It is the contention of the petitioner that, had the respondent-Council notified that the last date for submission of the application seeking approval for commencement of D Pharm and B Pharm courses was 31.08.2017 for the Academic Year 2018-2019, petitioner would have complied with the same and would have 7 submitted the application much prior to 31.08.2017. That in the absence of there being any such cut-off date being made known to the public, petitioner was well within time in submitting its application on 05.12.2017 for the Academic Year 2018-2019 and that the respondent-Council could not have rejected its application. In this regard, learned counsel for the petitioner submitted that this Court in a recent order passed in W.P. NO.23920 OF 2018 in the case of SAMBRAMA EDUCATION TRUST(R) AND ANOTHER vs. THE REGISTRAR-CUM-SECRETARY, PHARMACY COUNCIL OF INDIA AND ANOTHER, DISPOSED OF ON 19.07.2018 has issued a direction to the respondent- Council to consider the proposal sent by the petitioners therein within a period of thirty days from the date they received the said proposal and the petitioners therein were placed at liberty to re-send their proposals to the first respondent therein. He submitted that a similar direction may be issued in the instant case also as the respondent- Council is still in the process of considering the applications sent belatedly and that the consideration of petitioner's 8 application could also be made in the light of the aforesaid direction.
9. Per contra, learned counsel for respondent- Council with reference to its counter affidavit stated that the Hon'ble Supreme Court in the case of PARSHVANATH CHARITABLE TRUST & OTHERS VS. ALL INDIA COUNCIL FOR TECHNICAL EDUCATION & OTHERS reported in (2013) 3 SCC 385 has directed that the admission process must be completed in time and in fact, in that case, the Hon'ble Supreme Court laid down the admission schedule so as to ensure that the Academic courses commence from August 1st and pursuant to the said dictum of the Hon'ble Supreme Court the respondent-Council has issued on its website a schedule for submission of Standard Inspection Form (SIF) which is also for grant of approval for commencement of the Pharmacy course and in that, the procedure for approval has been issued. The time schedule fixed was between 1st August to 31st August of the previous year, and the same was also available to the 9 petitioner even in the year 2017 and the petitioner ought to have complied with the same and submitted its application between 1st August to 31st August of 2017, with regard to seeking approval for commencement of the D Pharm and B Pharm courses for the Academic Year 2018-2019 and the petitioner not having done so cannot now contend that the respondent-Council should consider its belated application.
10. Learned counsel for the respondent-Council also drew my attention to an order of the Hon'ble Supreme Court dated 17.08.2017 passed in W.P. (CIVIL) NO. 938 OF 2018 (YOGENDRA NATH SAXENA COLLEGE OF PHARMACY AND RESEARCH CENTRE VS. DR. A.P.ABDUL KALAM TECHNICAL UNIVERSITY AND OTHERS) wherein observations have been made against Pharmacy Council of India and submitted that in view of the said observations, the respondent-Council was justified in rejecting the belated application filed by the petitioner and therefore, there is no merit in the writ petition.
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11. By way of a reply, learned counsel for the petitioner was quick to point out that the observations of the Hon'ble Supreme Court would clearly indicate that the respondent-Council is acting in an irregular and irrational manner in the matter of grant of approval as in the absence of laying down any time line the Council is arbitrarily rejecting the applications such as that of the petitioner. That in the instant case, by resolution dated 7&8/9/17, a calendar for processing of applications and grant of approval in pursuance of PARSHVANATH'S JUDGMENT (SUPRA) DATED 13.12.2012 has been issued for the Academic Year 2019-2020. That such a calendar of events was not issued for the benefit of petitioner and other similarly situated persons in so far as 2017 year is concerned, for the Academic Year 2018-2019. The Judgment in PARSHVANATH's case was rendered on 13.12.2012 but no such calendar of events was issued for the Academic Year 2018-2019. That the document now submitted by the learned counsel for the respondent- Council is with regard to what was indicated on the website 11 of respondent-Council on 06.04.2016 i.e., time schedule for submission of Standard Inspection Form which has nothing to do with seeking approval for commencement of D Pharm or B Pharm courses by a Pharmacy College or Educational Trust such as the petitioner. Therefore in the absence of there being any calendar of events as per Annexure-7 as has been issued for the Academic Year 2019-2020 indicating the dates between which the application must be submitted, the petitioner cannot be found fault with in sending its application on 05.12.2017. Learned counsel, drawing my attention to the affidavit filed by the petitioner, submitted that, on the website of the respondent-Council, even with regard to Academic Year 2019-2020, where the calendar of events has now been published for seeking approval, stating that 30.07.2018 is the last date for making of such application, the web portal for making such applications is not being opened till date. As a result, the petitioner is not able to make such an application for the next Academic Year. In the circumstances, petitioner's counsel contended that a 12 direction may be issued to the respondent-Council to consider its application as has been directed by this Court in Order dated 19.07.2018 passed in W.P. No.23920/2018.
12. At the outset it may be observed that in Order dated 19.07.2018 passed in W.P. No.23920/2018, in the case of SAMBRAMA EDUCATION TRUST(R) there was no controversy with regard to the petitioner therein not being aware of the last date for sending its proposal or application to the Pharmacy Council which according to the respondent-Council was 31.08.2017. In that case, on 31.08.2017 the petitioner therein submitted its proposal or application through post which was received by the Pharmacy Council of India on 04.09.2017 and therefore the rejection of the application of the petitioner therein on the ground that it was belated was held to be not in accordance with law as it was construed that the proposal dated 31.08.2017 sent in the said case though received on 04.09.2017 was in accordance with the time line prescribed by the respondent-Council and the delay was on 13 account of postal transmission, therefore, on that premise a direction was issued to the respondent-Council to consider the case of the petitioner therein. But, in the instant case, the controversy is with regard to the respondent-Council not issuing any time line at all to the public in general or to persons such as petitioner herein intending to commence a Pharmacy College. According to petitioner since there was no specific calendar of events prescribed as has been done pursuant to the resolution dated 7&8/9/17 for the Academic Year 2019-2020, petitioner was unaware of the last date being 31.08.2017. According to petitioner's counsel it is only after the public notice dated 17.11.2017 being published, petitioner became aware of the fact that the last date for submission of proposal or application was 31.08.2017 and therefore, on 05.12.2017 it submitted its proposal.
13. However, learned counsel for the respondent- Council submitted that the said calendar of events is only illustrative and cannot be relied upon by the petitioner and 14 that what was available even in the year 2017 was what was put up on the respondent-Council's website on 06.04.2016, a copy of which is made available by the learned counsel for the respondent. On perusal of the same it is noted that the said time schedule only says ' SIF shall be submitted between 1st August to 31st August of the previous year'. Learned counsel for the respondent- Council submits that 'SIF' stands for Standard Inspection Form and same is applicable in the procedure for approval of affiliation / commencement applications. The Standard Inspection Form has to be appended along with the proposal or application seeking approval for commencement of D Pharm and B Pharm courses or a Pharmacy College and the same was available on the website even in August, 2017 and therefore, the petitioner could have complied with the said schedule. This submission is however countered by the learned counsel for the petitioner by submitting that the Judgment of the Hon'ble Supreme Court in PARSHVANATH's case was rendered in the year 2012 and it is for the first time that 15 pursuant to the said Judgment, that on 7&8/9/17 a resolution was passed by the respondent-Council issuing the calendar of events for the commencement of Pharmacy courses from the Academic Year 2019-2020 and that no such calendar of events or time line was issued for commencement of Pharmacy courses in the current Academic Year 2018-2019 in the year 2017 and therefore respondent-Council cannot rely upon the fact that issuance of the details of Standard Inspection Form on its website on 06.04.2016 would have also been applicable for submission of the proposal or application on or before 31.08.2017 and thereby contend that the petitioner's application is belated.
14. In this regard, learned counsel for the petitioner also pointed out that the respondent-Council cannot rely upon the Judgment of the Rajasthan High Court in the case of SHEKHAWATI INSTITUTE OF PHARMACY vs. STATE OF RAJASTHAN AND OTHERS (S.B. Civil writ No.9723/2018 disposed of on 16.07.2018) as in 16 that Judgment, reliance has been placed on the resolution showing the calendar of events as per Annexure-7 produced by the respondent herein which pertains to the commencement of Pharmacy courses from the Academic Year 2019-2020. But the same was relied upon by Rajasthan High Court even as the petitioner therein had filed its application beyond 31.08.2017 for the Academic Year 2018-2019 thereby dismissing the writ petition. On perusal of the Order of the Rajasthan High Court it is apparent that reliance has been placed on the calendar of events as per Annexure-7 appended to the counter affidavit filed by the respondent-Council herein which is for commencement of Pharmacy courses from the Academic Year 2019-2020 and thereby holding that the submission of the proposal or application by the petitioner therein was beyond 31.08.2017 and therefore "belated". With respect, the said Order has held that the application filed by the petitioner therein beyond 31.08.2017 was belated while considering the calendar of events for commencement of Pharmacy courses from the Academic Year 2019-2020 17 onwards and not for 2018-2019. In the circumstances, the said Order of the Rajasthan High Court is of no assistance to the respondent-Council.
15. In the circumstances, the point is, as submitted by learned counsel for the respondent whether what was on the website of the respondent-Council on 06.04.2016 would have been applicable in respect of applications to be submitted for commencement of a Pharmacy College in respect of the Academic Year 2018- 2019. On perusal of the same it is noted that the said time schedule is for submission of Standard Inspection Form. The issuance of calendar of events (as has been issued vide Annexure-7) in respect of Academic Year 2018- 2019 either on the website of the respondent-Council or by way of a newspaper publication is conspicuous by its absence. In the circumstances it must be held that there was no information or intimation available to persons such as the petitioner in so far as the last date for filing of its proposal or application seeking approval for 18 commencement of a Pharmacy College. In fact, the Hon'ble Supreme Court in the case of YOGENDRA NATH SAXENA (supra) has observed as under:
" The present writ petition discloses a sorry state of affairs. Despite approval by the AICTE on 10.04.2018, and affiliation letters from the University for the Bachelor of Pharmacy course, and the Diploma course by the Board, having been issued on 15.05.2018, we find yet another instance of Pharmacy council dragging its feet and ultimately giving their no objection only on 20.07.2018, thereby pay scant respect to the time line that has been laid down by this Court. The petitioners have come knocking to our door as the University has not included them for counseling. We have been informed that as on date the counseling is over. The petitioners may, therefore, fill up the seats on their own in accordance with the procedure laid down by the University. The petitioners will do so latest by 28.08.2018.
We have been informed that the Pharmacy Council is doing this in a number of cases, and is also irregular in the manner in which it grants approval. Sometimes it does so for the year in question and in other cases, it does so for many years at one go. We take note of this and at present only caution the 19 Pharmacy Council to act as it is supposed to act in accordance with the time line laid down. If we find that this course of conduct persists, we will be constrained to pass orders, if necessary, even going to the extent of superseding the Council."
16. The Supreme Court has cautioned the Pharmacy Council of India to act in accordance with the time line issued by it failing which, it would go to the extent of even superseding the Council. But in the instant case there is no time line laid down in so far as the Academic Year 2018-2019 is concerned which would have enabled persons such as the petitioner herein to have submitted their applications on or before 31.08.2017 so as to seek approval well within time for commencement of Pharmacy courses. The resolution dated 7&8/9/17 vide Annexure-7 cannot be construed to be only as an illustration as contended by the learned counsel for respondent-Council when it is a resolution passed by the Council for the Academic Year 2019-2020. But no such 20 resolution or time line was passed or prescribed, in so far as Academic Year 2018-2019 is concerned.
17. Even in Annexure-B which is a communication dated 17.11.2017 issued by the respondent-Council by way of a public notice, it has been stated that the prescribed date for receipt of applications from those interested in commencing Pharmacy courses for the Academic Year 2018-2019 was between 1st August, 2017 and 31st August, 2017. However, where such prescription had been made and when it had been made in so far as the Academic Year 2018-2019 is concerned is not demonstrated by the respondent - Council.
18. In the circumstances, placing reliance on the aforesaid observations of the Hon'ble Supreme Court it is held that in the absence of there being any publication of 'calendar of events for the Academic Year 2018-2019' in the newspaper or on the website of the Pharmacy Council of India as has been published as per Annexure-7 for the Academic Year 2019-2020, the respondent-Council cannot 21 contend that the last date for submission of such application or proposal for commencement of D Pharm or B Pharm courses for Academic Year 2018-2019 is concerned was 31.08.2017. Even otherwise, it is noted that this petitioner has filed this writ petition on 22.01.2018. Notice was issued to the respondent- Council on 25.01.2018. On 28.02.2018, two weeks' time was granted by this Court to file statement of objections if any. Subsequently time has been taken to file statement of objections on several dates and ultimately the counter affidavit has been filed only yesterday (30.08.2018). Much time has been lost in filing the statement of objections/ counter affidavit in this writ petition. If only the respondent-Council had filed its counter affidavit well within time in this writ petition, precious time could have been saved in adjudicating the matter at an earlier date. The pendency of this writ petition before this Court mainly being on account of the delay in filing the statement of objections by the respondent-Council ought not to act to 22 the disadvantage of the petitioner and in favour of the respondent-Council.
19. Petitioner's counsel further submits that it is awaiting the approval of the AICTE and the same would be considered once the respondent-Council grants the approval. It is also noted that in the case of SAMBRAMA EDUCATION TRUST(R) referred to above, disposed of on 19.07.2018 a direction was issued to consider the proposal of the petitioners therein within a period of thirty days from that date of receipt of such proposal and petitioners therein were permitted to re-send their proposal to the Pharmacy Council of India at the earliest. Learned counsel for the respondent-Council submits that the proposal of SAMBRAMA EDUCATION TRUST(R) is under consideration.
Hence, the following:
ORDER The communication dated 03.01.2018 issued by the respondent-Council is quashed. The respondent-Council is directed to reconsider petitioner's proposal or application 23 dated 05.12.2017 within a period of thirty days from the date of receipt of such proposal. Petitioner is at liberty to resend the proposal to the respondent-Council.
Learned counsel for the petitioner submits that the proposal will be resubmitted expeditiously.
The respondent-Council is further directed to issue calendar of events in respect of approvals to be sought by those persons seeking commencement of Pharmacy courses for every Academic Year well in advance so as to avoid a situation that has arisen as in the present case.
Writ petition is disposed off in the aforesaid terms.
In view of the urgency pleaded by the petitioner's counsel, Office to issue operative portion of this Order to learned counsel for the respondent as well as learned counsel for the petitioner.
Sd/-
JUDGE sac*