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[Cites 6, Cited by 0]

Jammu & Kashmir High Court

University Of Jammu & Ors. vs Lakhsya Dev& Ors. on 22 August, 2017

Equivalent citations: AIR 2017 JAMMU AND KASHMIR 165

Bench: Alok Aradhe, B. S. Walia

       HIGH COURT OF JAMMU AND KASHMIR AT JAMMU

LPA(OW) No.56/2017 & MP No.01/2017
c/w
LPA(OW) No.62/2017 & MP No.01/2017
LPA(OW) No.66/2017 & MP No.01/2017
LPA(OW) No.73/2017 & MP No.01/2017
                                                               Date of order:22.08.2017
        University of Jammu & ors.             Vs.           Lakhsya Dev& ors.
Coram:
            Hon'ble Mr. Justice Alok Aradhe, Judge.
            Hon'ble Mr. Justice B. S. Walia, Judge
Appearance:
For appellant (s) : Mr. Ajay Abrol, Advocate.
For respondent(s) : Mr. K. S. Johal, Sr. Advocate with

Mr. J. I. Balwan, Advocate for Institutes.

Mr. Abhinav Sharma, Advocate for Students.

Mr. D. S. Chouhan, Advocate for ACITE. 

i/    Whether to be reported in             Yes/No
      Press/Media?
ii/   Whether to be reported in             Yes/No
      Digest/Journal?
Per: Aradhe-J.

In this bunch of appeals, the appellants have assailed the validity of order dated 05.05.2017 passed by the learned Single Judge by which writ petition preferred by the Educational Institutions imparting education in Bachelor of Pharmacy course as well as by the students has been disposed of by a common order. Since common questions of law and fact arise for consideration in these appeals, they were heard analogously and are being decided by this common order. For facility of reference, facts from LPA(OW) No.56/2017 are being referred to.

02. The Educational Institutions, who are arrayed parties in this bunch of appeals, admittedly impart education in the course of Bachelor of Pharmacy.

03. The State Government by communication dated 28.08.2012, conveyed its no objection for starting the College of Pharmacy to the Registrar of Jammu University (hereinafter to be referred to as 'University'). The University by a communication LPA(OW) No.56/2017 & connected matters Page 1 of 8 dated 09.09.2013 granted temporary/provisional affiliation to run B-Pharmacy Course for the academic session 2013-2014 after conducting the inspection of the Colleges on 08.05.2013, subject to the terms and conditions stipulated in the communication dated 09.09.2013. One such condition which was incorporated in the communication dated 09.9.2013 was, that the College shall get NOC from All India Council for Technical Education (hereinafter to be referred to as 'AICTE') before the start of the next academic session. Thereafter, by a communication dated 13.10.2014, University once again granted temporary/provisional affiliation to run B- Pharmacy Course for academic session 2014-2015. The Educational Institutions in pursuance of the provisional affiliation granted to them for the academic session 2013-2014 and 2014-2015, admitted the students who admittedly have been prosecuting their studies in the aforesaid Educational Institutions.

04. The Supreme Court in the case of 'Parshavanath Charitable Trust & ors. vs. All India Council for Tech. Edu. & ors.' (2013) 3 Supreme Court Cases 385 has fixed the last date of granting or refusing approval by the University to run technical courses as 15th May of each year. The Educational Institutions, in anticipation of affiliation by the University, issued an advertisement on 28.06.2015, in pursuance of which, the students were admitted for the academic session 2015-2016 in Bachelor of Pharmacy Course on 29.07.2015. The Principals of the Educational Institutions submitted Registration Return Forms (R. R. Forms) of the students on 20.09.2015. However, R.R.Forms of the students were not accepted by the University on the ground that by communication dated 08.09.2015 addressed to the Institutes, it had refused the affiliation inter alia on the ground that the Educational Institutions did not have approval from the AICTE, had no approval from Pharmacy Council of India and were not registered with the State Pharmacy Council. Accordingly, the Educational Institutions were directed not to admit the students for the academic session 2015-2016. It is pertinent to mention here that in view of the decision of the Supreme Court in the case of Parshavanath Charitable Trust (Supra), as per the time schedule prescribed by the Supreme Court for admission to technical and professional courses, the last date for granting approval was 15th May. However, LPA(OW) No.56/2017 & connected matters Page 2 of 8 University conveyed that affiliation of Educational Institutions is withheld belatedly on 08.09.2015. It is pertinent to note that before 08.09.2015, the students were already admitted to Bachelor of Pharmacy Course by the Institutions. However, their R.R.Forms were not accepted by the University, thereupon the students as well as the Educational Institutions filed the writ petitions, in which inter alia a writ of mandamus was sought directing the respondents to accept the RR Forms of the students for the session 2015-2016.

05. Learned Single Judge by a common judgment dated 05.05.2017, inter alia directed the authorities to give a fresh look to the case of the Educational Institutions and to consider their case for grant of approval and affiliation taking into account removal and rectification of the deficiencies made by the Educational Institutions and having regard to the Clauses-15 & 19 of the All India Council for Technical Education (Grant of Approvals for the Technical Institutions) Regulations, 2016. The Educational Institutions were directed to approach the AICTE and University with all documents within one week and AICTE and University were directed to accord consideration to the cases of the Educational Institutions and to decide the matter for issuance of approval and grant of affiliation in favour of the Educational Institutions within a period of four weeks. It was further held that the admissions of students already admitted in Educational Institutions shall not be affected in any manner and they shall be allowed to pursue their studies and appeared in the examination to be held by the respondents at par with their counter parts of affiliated Colleges/Institutes. Being aggrieved, the appellants have filed these appeals.

06. Learned counsel for the appellant/University submitted that the students were admitted by the Educational Institutions on their own, without seeking affiliation from the University. Therefore, no sanctity can be attached to their admission in the course in question. It is also submitted that the order dated 08.09.2015 was challenged by the Educational Institutions in OWP No.1363/2015 in which an interim order was passed by this Court on 21.09.2015 by which the Educational Institutions were directed to submit applications for approval to the AICTE. However, the LPA(OW) No.56/2017 & connected matters Page 3 of 8 Educational Institutions could not get the approval from the AICTE. Thereafter, the writ petitions were filed by the students. It is also submitted that the students, who have been admitted by the Institutions, are neither registered with the University nor the Educational Institutions are affiliated with the University and the Educational Institutions and also have not obtained the approval of the AICTE, therefore, the learned Single Judge grossly erred in directing the University to take examination of the students admitted by the University illegally. In support of his submissions, learned counsel for the appellant has referred to the decision of the Supreme Court in the case of Dental Council of India Versus Dr. Hedgewar Smruti Rugna Seva Mandal, Hingoli & ors. (2017 Legal Eagle 311) and in the case of Medical Council of India versus Kalinga Institute of Medical Science (KIMS) & Ors {2016 AIR (SC) 2294}.

07. On the other hand, Mr. Abhinav Sharma, learned counsel for the students, submitted that the Institutes, in which the students were admitted, were affiliated to the University for the academic sessions 2013-2014 pursuant to the No Objection Certificate issued by the State Government without approval of the AICTE and the Educational Institutions were asked to obtain approval of the AICTE for the next session 2014-2015. It is further submitted that the Educational Institutions were granted affiliation by the University for the academic session 2014-2015 without asking for approval of the AICTE and it ought to have been appreciated that the provisions of the Pharmacy Act are not applicable to the State of Jammu and Kashmir. It is also argued that the Educational Institutions stood recommended by the State Pharmacy Council as no proper State Pharmacy council is constituted under the State Act and the University has granted affiliation to the Educational Institutions for the year 2013-2014 and 2014-2015 only on the basis of recommendations by the Officer of the State Pharmacy Council. It is argued that the University did not rightly ask for approval of the AICTE while granting affiliation for the academic session 2013-2014 in the light of the decision of the Supreme Court in the case of 'Association of Management of Private Colleges & ors. Vs. All India Council for Technical Education & ors. (2013) 8 SCC 271.

LPA(OW) No.56/2017 & connected matters Page 4 of 8

08. It is also pointed out that the Supreme Court later on in the case of Delhi Technical Campus Vs. All India Council for Technical Education subsequently passed an interim order on 28.05.2014 by which it directed the AICTE to grant approval to the Educational Institutions which stood affiliated to the University for the sessions 2013-2014 and 2014-2015 without approval of the AICTE and as an existing institute and not by applying the norms required for fresh institute. It is also submitted that the University was under an obligation to convey its decision with regard to affiliation of the Educational Institutions on or before 15.05.2015. However, the same was conveyed only on 08.09.2015. It is pointed out that in compliance of the order passed by the learned Single Judge, the AICTE has rejected the claim of the Educational Institutions for grant of recognition by order dated 05.07.2017 which is subject-matter of the challenge in OWP No.1105/2017 and the writ petition is pending before this Court. Lastly, it is submitted that the petitioners were never admitted under the management quota. In support of his submissions, learned counsel for the petitioners has referred to decision of Supreme Court in the case of Association of Management of Private Colleges & ors. Vs. All India Council for Technical Education & ors. 2013 (8) AIR SCC 271.

09. Mr. K. S. Johal, learned senior counsel appearing for the Institutions, submitted that order dated 08.09.2015 by no stretch of imagination can be termed as an order of disaffiliation as the procedure prescribed under statute 21.12 of Statute of University has not been followed. It is further submitted that no grievance has been raised by the University with regard to the students, who have been admitted in the course in question for the academic session 2013-2014 as well as academic sessions 2014-2015. It is also argued that the issue with regard to the approval by the AICTE is alive as the same is pending adjudication in the writ petition which has been filed by the Educational Institutions. It is further submitted that the AICTE has not filed any appeal against the impugned order and in compliance of the impugned order has passed an order rejecting the application for approval made by the Educational Institutions.

LPA(OW) No.56/2017 & connected matters Page 5 of 8

10. Mr. D. S. Chouhan, learned counsel for the AICTE, submitted that in the absence of approval from the AICTE, the Educational Institutions could not have admitted the students. It is further submitted that till today, the Educational Institutions have not obtained approval by the AICTE and therefore, the Educational Institutions have to be treated as new Colleges. It is also pointed out that the case of the Educational Institutions for grant of approval to run the course has already been rejected vide order dated 08.09.2015 which is sub-judice before this Court. In support of his submissions, learned counsel has referred to the decision of the Supreme Court in the case of 'All India Council For Technical Education vs Surinder Kumar Dhawan & Ors.' (2009) 11 SCC 726.

11. We have considered the submissions made by learned counsel for the parties and have perused the record. The Educational Institutions were directed by the University vide communication dated 08.09.2015 not to admit the students for the academic session 2015-2016 and the Educational Institutions were informed that the colleges cannot be affiliated until and unless it produces the following:- 

       (i)     Approval from the AICTE;
       (ii)    Approval from Pharmacy Council of India &
       (iii)   Registration with the State Pharmacy Council.

12. So far as the issue relating to approval by the Pharmacy Council of India is concerned, it is pertinent to note that the provisions of [The] Pharmacy Act, 1948 do not apply to the State of Jammu and Kashmir, therefore, there is no requirement of obtaining the approval from the Pharmacy Council of India. An Act has been enacted by the State Legislature for regulation of profession and practice of Pharmacy and for the purpose of constitution of Pharmacy Council in the State of Jammu and Kashmir which is known as the Jammu and Kashmir Pharmacy Act, 2011. However, under Section 3 of the said Act, the Pharmacy Council has not been constituted and Interim Council has been constituted which inspects the Educational Institutions imparting education in B-Pharma Course and issues NOC. Thus, in the absence of the constitution of the Pharmacy Council, it is not possible for the Educational Institutions to get itself registered with the State Pharmacy Council.

LPA(OW) No.56/2017 & connected matters Page 6 of 8

13. So far as the issue relating to approval of the AICTE is concerned, we need not deal with the same except for by stating that the AICTE has accepted the order passed by the learned Single Judge and in compliance of the directions issued by the learned Single Judge has rejected the application for grant of approval by an order dated 05.07.2017 which is the subject-matter of the challenge in OWP No.1105/2017. Therefore, we refrain ourselves from expressing any opinion with regard to issue of absence of approval from the AICTE to run the course as the same is pending adjudication in OWP No.1105/2017.

14. So far as the issue with regard to affiliation of the Educational Institutions with University is concerned, admittedly the University has granted affiliation to the Educational Institutions for the academic session 2013-2014 as well as 2014-2015. The University was under an obligation in view of the decision of Supreme Court in the case of Parshavanath Charitable Trust (Supra) to communicate its refusal to grant affiliation to the Educational Institutions by 15.05.2017. However, after the students were admitted, the University communicated that the affiliation to the Educational Institutions is being withheld on the ground that the Educational Institutions had failed to obtain approval from the AICTE and had not obtained approval from the Pharmacy Council of India and were not registered with State Pharmacy Council. It is pertinent to note that before communication was sent by the University, the students were already admitted in the Educational Institutions on 29.07.2015. The University till date has not rejected the claim of the Educational Institutions for affiliation but has only withheld it on the grounds as stated above. Therefore, the University cannot be allowed to take advantage of its inaction in the peculiar facts and circumstances of the case.

15. Reverting to submissions made by learned counsel for the appellant that in the absence of the affiliation of the Educational Institutions to the University, the Educational Institutions could have not admitted the students is concerned, suffice it to say that till today the University has not taken any final decision with regard to affiliation of the Educational Institutions but has withheld it. The decision rendered in LPA(OW) No.56/2017 & connected matters Page 7 of 8 the case of Dental Council of India (Supra) on which heavy reliance was placed by learned counsel for the appellant, is concerned, the same is of no assistance to the appellant in the fact situation of the case as the aforesaid decision lays down the legal preposition that the Court should not pass interim orders granting admission to the students specially when the Educational Institutions had not been accorded approval by the University. In the instant case, at the cost of repetition, we may add that the University has not taken any decision till date with regard to affiliation. Similarly, the case of Medical Council of India (Supra) deals with the preposition that this Court cannot examine the report submitted by an expert body like appellate authority. Therefore, the aforesaid decision is also of no assistance to the appellant in the fact situation of the case.

16. In view of the proceedings analysis, we are inclined to interfere with the order passed by the learned Single Judge. However, since the issue with regard to approval by the AICTE is pending adjudication before the learned Single Judge, we deem it appropriate to direct that the admission of the students, who were admitted in the academic session 2015-2016, shall be subject to outcome of the aforesaid litigation. Accordingly, the appeals are disposed of. 

                                         ( B. S. Walia )    ( Alok Aradhe )
                                              Judge            Judge
Jammu
22nd August, 2017
Ram Murti




LPA(OW) No.56/2017 & connected matters                                Page 8 of 8