Rajasthan High Court - Jodhpur
Jan Hit Sewa Sansthan vs Raj.Pharmacy Council And Anr on 3 May, 2019
Author: P.K. Lohra
Bench: P.K. Lohra
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 7471/2018
Jan Hit Sewa Sansthan, Agarwal Pharmacy College, Merta,
Rajasthan through its authorized representative Sh. Nand Bihari
Agarwal, S/o Sh. Kailash Chandra Agarwal, aged abouty 27
years, resident of Merta City, District Nagaur.
----Petitioner
Versus
1. Rajasthan Pharmacy Council through its Registrar Sardar
Patel Dispensary Campus, Near Sahkar Bhawan, 22
Godown Circle, Sardar Patel Marg, Jaipur.
2. Dr. Alok Khunteta, Registrar, Rajasthan Pharmecy Council,
Sardar Patel Dispensary Campus, near Sahkar Bhawan,
22 Godown Circle, Sardar Patel Marg, Jaipur.
3. Registrar-cum-Secretary, Pharmacy Council of India,
Kotala Road, Evan E Glimbmarg, New Delhi.
4. OPJS University through Registrar, Rawatsar Kunjla, Near
Sankhu Fort, Jhunjhunu Rajgarh Road, Churu 331303.
----Respondents
For Petitioner(s) : Mr. Hemant Balani
For Respondent(s) : Mr. Kuldeep Mathur, Mr. Sanjeet
Purohit & Mr. Ankur Mathur.
HON'BLE MR. JUSTICE P.K. LOHRA
Order 03/05/2019 Matter comes on an application for preponing date of hearing. For the reasons mentioned therein, application is allowed and petition is taken up for hearing today.
With the consent of rival parties, case is heard for final disposal.
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(2 of 11) [CW-7471/2018] Petitioner, a registered society under the Rajasthan Societies Act, 1958, has preferred this writ petition under Article 226 & 227 of the Constitution for seeking under-mentioned reliefs:
"i. By an appropriate writ order or direction, the Respondent No.1 and Respondent No.2 may kindly be directed to add the name of OPJS University as the examining authority in the online system.
ii. By an appropriate writ order or direction, the Respondent No.1 and Respondent No.2 may kindly be directed register all the students passed from the petitioner's pharmacy college as Pharmacist. iii. By an appropriate writ order or direction, the State Government may kindly be directed to initiate inquiry against the respondent no.2 for misusing its powers and depriving the students to get themselves registered as Pharmacist.
iv. Any other appropriate, writ, order or or which which this Hon'ble Court may deem it just and proper in the facts and circumstances of the case, may kindly be issued.
v. Cost of the writ petition may kindly be awarded to the humble petitioner."
In order to claim desired reliefs, it is, inter alia, averred in the petition that petitioner-Society is running a Pharmacy College at Merta City under the name of "Agarwal Pharmacy College". For filing writ petition on behalf of Society, authorization letter in favour of its Vice President-Nand Bihari Agarwal is placed on record as Annex.1. The petitioner has further pleaded that its College is involved in imparting Diploma in Pharmacy Course since year 2003-04. It is also pleaded in the writ petition that for imparting education in Pharmacy Diploma Course, approval from the Academic/Executive Council, to which the Institute is recognized, is essential. A significant fact that petitioner- (Downloaded on 28/06/2019 at 01:39:24 AM)
(3 of 11) [CW-7471/2018] Society's College is imparting Pharmacy Diploma Course after seeking approval from OPJS University and Pharmacy Council of India, also finds mention in the writ petition. To substantiate all these positive assertions, petitioner has placed on record Annexs.2 to 5 respectively. Acceptance of petitioner's request for change in examining authority from RUHS to OPJS University is also mentioned in the petition. Fact of establishment of OPJS University under Act No.16 of 2013 is also incorporated in the pleadings. Concurrence of OPJS University, to act as examining authority of the College for running Diploma course, too finds mention in the petition. Approval of Pharmacy Council of India for OPJS University, to act as Examining Authority w.e.f. 2013-2014 qua Agarwal Pharmacy College, Merta City, is also placed on record as Annex.7.
petitioner-Society has further averred in the writ petition that, after receiving approval for the College, it has sent many communications to second respondent-Council with a request to include name of OPJS University in online registration form. Various letters and reminders in cumulative are placed on record as Annex.8. In all these communications, petitioner has highlighted that for want of OPJS University's inclusion, the students of its College are unable to fill-up their Pharmacy Registration Forms online. As a matter of fact for online registration, selecting name of the University is pre-requisite.
While referring to other State Pharmacy Councils, petitioner has asserted that the students passed their Pharmacy Diploma (Downloaded on 28/06/2019 at 01:39:24 AM) (4 of 11) [CW-7471/2018] Course from its College are accorded registration as Pharmacist upon receipt of confirmation from College to this effect by the respective State Councils. In support thereof, various communications are collectively filed as Annex.9. From the recitals contained in the letters of Maharashtra State Pharmacy Council and Gujarat State Pharmacy Council, it is abundantly clear that these Councils have simply sought confirmation about approval of Pharmacy Council of India for the College to run diploma course. petitioner-Society has also placed on record the minutes of Executive Committee meeting dated 9 th of April, 2018 of Pharmacy Council of India to show further approval of its College upto Academic Year 2018-19 with confirmation of OPJS University as its examinee. Showing its indignation for total apathy and inaction on the part of second respondent to include name of OPJS University in the list of Examining Universities, it is submitted by the petitioner that second respondent Council has not paid any heed to its representations and reminders. Fact showing grievances of some of the students of the College against the action of second respondent is also highlighted in the pleadings. For substantiating this plea, writ petition on behalf of some of the students bearing No.4830/2018, filed before this Court, also finds mention in the writ petition and its disposal vide order dated 09.04.2018 (Annex.13). While disposing of the writ petition, the Court issued following directions:
"In view of the above, the present writ petition is disposed of with a direction to respondent No.1 to decide the representation of the petitioners as expeditiously as possible preferably within one month of the receipt of this order."
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(5 of 11) [CW-7471/2018] It is also submitted by petitioner that so far second respondent has not taken any decision in the matter despite directions of the Court. Categorizing the action of second respondent as arbitrary and unreasonable, petitioner-Society has also taken shelter of Articles 14, 19(1)(g) & 21 of the Constitution. It is also pleaded by the petitioner-Society that as per Section 12 of the Pharmacy Act, 1948, the competent authority for approval of the course is Central Council and once the Central Council is satisfied after an inquiry, as it thinks fit to make, that the said course of study is in conformity with education regulations, it shall declare the same to be an approved course of study for the purpose of admission to an approved examination of Pharmacist.
On behalf of respondents No.1 and 2, reply to the writ petition is submitted. In the reply, on their behalf, besides joining issue with the petitioner-Society on merits, certain preliminary objections are also raised. As per respondents, OPJS University is a private University, therefore, it is not authorized to affiliate any college. It is further submitted that the State Pharmacy Council sent a communication through Pharmacy Council of India seeking clarification as to whether students passing diploma in Pharmacy course from Agarwal Pharmacy College, Merta City - affiliated with OPJS University, can be registered as Pharmacists with State Council or not, but so far it has not received any affirmative communication from the Central Council. It is also submitted in the preliminary objections that OPJS University is not having any authority to confer or grant any degree, or diploma to a college (Downloaded on 28/06/2019 at 01:39:24 AM) (6 of 11) [CW-7471/2018] which is not run by it. Adverting to the merits of the case, respondent State Pharmacy Council has reiterated its stand that a private University cannot recognize a course run by some other trust by treating it to be a constituent unit more particularly when it is not run in the main campus of the University. It is also averred in the reply that any University established or incorporated by Central Act or State Act can confer degrees under Section 3 only in terms of authority available to it under the Act and under the OPJS University Act, 2013 the University is having no authority to award/confer degree to the students of the concerned College. Besides that, State Pharmacy Council has also raised an objection that OPJS University is having no administrative and financial control over the affairs of Agrawal Pharmacy College and as such it cannot be considered as a constituent unit of the University.
Apart from reply filed by State Pharmacy Council, a preliminary reply is also submitted by respondent No.4. In its reply, 4th respondent, OPJS University, has referred to Schedule II of the Act of 2013, which provides power to the State Universities to undertake study and research in the discipline of pharmaceutical, science and nursing. The University has also pleaded that as per agreement Annex.R-4/2, between Agrawal Pharmacy College, Merta City (Rajasthan) and OPJS University dated 4th of October, 2013, the College is a constituent unit of the University. On behalf of University, Annex.R-4/4 dated 1 st of December, 2015 is also placed on record showing OPJS University as examining authority of Agrawal Pharmacy College. Inclusion (Downloaded on 28/06/2019 at 01:39:24 AM) (7 of 11) [CW-7471/2018] of OPJS University in the list of accredited and approved Universities by UGC in its list is also highlighted in the reply by placing on record letter/list dated 7th of December 2013 (Annex.R- 4/6). Besides these documents, a copy of approval and extension granted for the year 2018-19 by the Pharmacy Council of India to impart education in Pharmacy Diploma Course by Agrawal Pharmacy College and confirmation of OPJS University as examining authority is also placed on record as Annex.R-4/7.
To counter reply of the State Pharmacy Council, on behalf of petitioner-Society, rejoinder is filed reiterating the facts averred in the writ petition. In the rejoinder, petitioner-Society has also very specifically pleaded that under the Pharmacy Act, 1948, State Pharmacy Council is having no authority to refuse registration of candidates passing out approved examination under Section 12 of the Act of 1948. Highlighting object of the Act of 1948, it is submitted in the rejoinder that Central Council of Pharmacy is the Apex body to prescribe minimum standards of education and approve courses of study and examination for Pharmacists. Dilating on the constitution of Central Council, petitioner in its rejoinder has also referred to Sections 3 & 10 of the Act of 1948. Section 3 provides for constitution and composition of Central Council, whereas Section 10 provides that Central Council may subject to the approval of Central Govt. may make regulations, to be called "Education Regulations", prescribing minimum standards of education required for qualification as Pharmacist. That apart, laying emphasis on sub-section (3) of Section 12 and Section 13, 15A, 15B as well as other Sections, petitioner has averred in the (Downloaded on 28/06/2019 at 01:39:24 AM) (8 of 11) [CW-7471/2018] rejoinder that once the Diploma Course is approved by Central Council, the State Council is bound to register an incumbent, who has completed the Diploma in Pharmacy Course. In the rejoinder, Section 32(2) of the Act of 1948 is also quoted.
I have heard learned counsel for the parties and perused the materials available on record.
Upon perusal of the available material, more particularly, documents annexed with the preliminary reply of OPJS University, it is abundantly clear that Agrawal Pharmacy College is a constituent unit of OPJS University. Moreover, the Central Council by its communication dated 30th of October, 2017 (Annex.7), has approved/confirmed the OPJS University as examining authority for Agrawal Pharmacy College, w.e.f. Academic Session 2013-14. The said approval by the Central Council is also in vogue till date as is evident from Annex.12, the minutes of Executive Committee of Central Council dated 9th of April, 2018. One more redeeming fact is that some of the students, who have completed their Pharmacy Diploma Course from Agrawal Pharmacy College, Merta City, with its examining authority as OPJS University, are registered as Pharmacists by the Maharashtra State Pharmacy Council and Gujarat State Pharmacy Council respectively. If the entire scheme of the Act of 1948 is objectively examined, then it would ipso facto reveal that it is the concern of Central Council to maintain minimum standards of education and approve the course of study and examination for Pharmacists. By virtue of Section 10, it is only the Central Council, which is authorized to make (Downloaded on 28/06/2019 at 01:39:24 AM) (9 of 11) [CW-7471/2018] regulations prescribing minimum standards of education, required as qualification for Pharmacist. Section 12 of the Act of 1948, runs as under:
12. Approved courses of study and examinations.- (1) Any authority in a State which conducts a course of study for pharmacists may apply to the Central Council for approval of the course, and the Central Council, if satisfied, after such enquiry as it thinks fit to make, that the said course of study is in conformity with the Education Regulations, shall declare the said course of study to be an approved course of study for the purpose of admission to an approved examination for pharmacists.
(2) Any authority in a State which holds an examination in pharmacy may apply to the Central Council for approval of the examination, and the Central Council, if satisfied, after such enquiry as it thinks fit to make, that the said examination is in conformity with the Education Regulations, shall declare the said examination to be an approved examination for the purpose of qualifying for registration as a pharmacist under this Act.
(3) Every authority in the States which conducts an approved course of study or holds an approved examination shall furnish such information as the Central Council may, from time to time, require as to the courses of study and training and examination to be undergone, as to the ages at which such courses of study and examination are required to be undergone and generally as to the requisites for such courses of study and examination.
From a bare perusal of Section 12 of the Act of 1948, it is abundantly clear that the authority for approval of the course of study and examination lies in the Central Council. Section 12 also clarifies that the Central Council shall declare the course of education to be an approved course of study and examination to be an approved examination for Pharmacists. As per Section 13, once approval is granted for the course of study or approved (Downloaded on 28/06/2019 at 01:39:24 AM) (10 of 11) [CW-7471/2018] examination, same can only be withdrawn by the Central Council. Therefore, a cumulative reading of all the provisions of the Act of 1948, in conjunction with the relevant documents placed on record by rival parties, there remains no room of doubt that Diploma Course in Pharmacy, run by Agrawal Pharamcy College Merta City, Rajasthan is approved by the Central Council with confirmation of the OPJS University as its examining authority. The factum of registration of students passed out from Agrawal Pharmacy College by other States Pharmacy Councils is yet another significant fact, which cannot be overlooked by the Court inasmuch as such registrations are being accorded by the respective State Councils after seeking clarification from the college concerned. In view thereof, unhesitatingly, in my view, action of the respondent State Pharmacy Council in not registering the students who have passed their Diploma course in Pharmacy from Agrawal Pharmacy College as Pharmacists, cannot be sustained. The reasons spelt out by the State Council in reply and canvassed are bereft of any merit in the backdrop of facts and circumstances of the case. Material available on record, if objectively construed on the touchstone of relevant provisions of the Act of 1948, then, unhesitatingly, the defence of State Council lacks legal foothold. Moreover, in the peculiar facts of the instant case, such a defence by State Council cannot be countenanced.
Resultantly, the writ petition is allowed and respondents No.1 & 2 are directed to include the name of OJPS University as examining authority in the online registration system qua students, who have passed their Pharmacy Diploma Course from (Downloaded on 28/06/2019 at 01:39:24 AM) (11 of 11) [CW-7471/2018] Agrawal Pharmacy College, Merta City, to facilitate their registration as Pharmacists. The requisite exercise may be undertaken by respondents No.1 & 2 within a period of 30 days from the date of receipt of certified copy of this order.
(P.K. LOHRA),J (Downloaded on 28/06/2019 at 01:39:24 AM) Powered by TCPDF (www.tcpdf.org)