Allahabad High Court
Jasraj Singh vs State Of U.P. And 3 Others on 23 August, 2024
Author: Salil Kumar Rai
Bench: Salil Kumar Rai
HIGH COURT OF JUDICATURE AT ALLAHABAD ?A.F.R. Neutral Citation No. - 2024:AHC:136268 Court No. - 1 Case :- WRIT - C No. - 43028 of 2023 Petitioner :- Jasraj Singh Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Avneesh Tripathi Counsel for Respondent :- C.S.C.,Rahul Chaudhary,Vaibhav Tripathi Hon'ble Salil Kumar Rai,J.
Heard Sri Avneesh Tripathi, the counsel for the petitioner, Sri Rahul Chaudhary, the counsel for respondent nos. 3 and 4, i.e., Amity University and its Vice-Chancellor, Sri Vaibhav Tripathi, the counsel for the Pharmacy Council of India and the Standing Counsel representing the State of Uttar Pradesh, i.e., respondent no. 1.
Amity University is recognized by the University Grants Commission and runs, amongst other, Bachelor of Pharmacy (B. Pharm) Course. The duration of the course is four years / eight semesters. The pharmacy course is regulated by the Pharmacy Act, 1948 (hereinafter referred to as, 'Act, 1948'). In light of the judgment of the Supreme Court in Pharmacy Council of India vs. Dr. S.K. Toshniwal Educational Trusts Vidarbha Institute of Pharmacy & Ors. 2021 (10) SCC 657, the norms and regulations of the Pharmacy Council of India (hereinafter referred to as, 'PCI') are to be followed by the institutions imparting education for degrees and diplomas in Pharmacy.
Section 3 of the Pharmacy Act, 1948 stipulates the constitution of a Central Council. The PCI is the Central Council referred in the Act, 1948. Section 10 of the Act, 1948 provides that the Central Council may, subject to the approval of the Central Government, make regulations to be called the Education Regulations, prescribing the minimum standard of education required for qualification as a pharmacist. The provision further provides that the Education Regulations may prescribe the subjects of examination and the standards to be attained in the subjects and other condition for admission to examinations. Section 10 (4) provides that the Education Regulations shall be published in the Official Gazette and in such other manner as the Central Council may direct. Section 10 of the Pharmacy Act, 1948 is reproduced below : -
"10. Education Regulations.-(l) Subject to the provisions of this section, the Central Council may, subject to the approval of the Central Government, make regulations, to be called the Education Regulations, prescribing the minimum standard of education required for qualification as a pharmacist.
(2) In particular and without prejudice to the generality of the foregoing power, the Education Regulations may prescribe -
(a) the nature and period of study and of practical training to be undertaken before admission to an examination;
(b) the equipment and facilities to be provided for students undergoing approved courses of study;
(c) the subjects of examination and the standards therein to be attained;
(d) any other conditions of admission to examinations.
(3) Copies of the draft of the Education Regulations and of all subsequent amendments thereof shall be furnished by the Central Council to all State Governments, and the Central Council shall before submitting the Education Regulations or any amendment thereof, as the case may be, to the Central Government for approval under sub-section (1) take into consideration the comments of any State Government received within three months from the furnishing of the copies as aforesaid.
(4) The Education Regulations shall be published in the Official Gazette and in such other manner as the Central Council may direct.
(5) The Executive Committee shall from time to time report to the Central Council on the efficacy of the Education Regulations and may recommend to the Central Council such amendments thereof as it may think fit."
Section 18 of the Pharmacy Act, 1948 empowers the Central Council to make regulations, consistent with the Act, 1948, with the approval of the Central Government and by notification in the Official Gazette. Section 18 of the Pharmacy Act, 1948 is reproduced below : -
"18. Power to make regulations.-(l) The Central Council may, with the approval of the Central Government, [by notification in the Official Gazette,] make regulations consistent with this Act to carry out the purposes of this Chapter.
(2) In particular and without prejudice to the generality of the foregoing power, such regulations may provide for -
(a) the management of the property of the Council;
(b) the manner in which elections under this Chapter shall be conducted;
(c) the summoning and holding of meetings of the Central Council, the times and places at which such meetings shall be held, the conduct of business thereat and the number of members necessary to constitute a quorum;
(d) the functions of the Executive Committee, the summoning and holding meetings thereof, the times and places at which such meetings shall be held, and the number of members necessary to constitute a quorum;
(e) the powers and duties of the President and Vice-President;
(f) the qualifications, the term of office and the powers and duties of the [Registrar, Secretary], Inspectors and other officers and servants of the Central Council, including the amount and nature of the security to be furnished by the [Registrar or any other officer or servant].
(g) the manner in which the Central Register shall be maintained and given publicity;
(h) constitution and functions of the committees other than Executive Committee, the summoning and holding of meetings thereof, the time and place at which such meetings shall be held, and the number of members necessary to constitute the quorum.
(3) Until regulations are made by the Central Council under this section, the President may, with the previous sanction of the Central Government, make such regulations under this section, including those to provide for the manner in which the first elections to the Central Council shall be conducted, as may be necessary for carrying into effect the provisions of this Chapter, and any regulations so made may be altered or rescinded by the Central Council in exercise of its powers under this section.
(4) Every regulation made under this Act, shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the regulation or both Houses agree that the regulation should not be made, the regulation shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that regulation."
A comparative reading of Section 10 and Section 18 of the Act, 1948 shows that while Section 10 relates to matters relating to academic standards, Section 18 is in relation to management of the Council the Committees constituted under the Act, 1948 and also relates to the qualifications, duties and powers as well as term of office of the office-bearers of the Council. The Regulations framed under Section 10 are subject to approval by the Central Government and may be published in any manner as the PCI may direct apart from being published in the Official Gazette. However, the Regulations framed under Section 18 are to be published in the Official Gazette and are made with the approval of the Central Government. The difference between Section 10 and Section 18 shall be considered later in the judgment.
The Pharmacy Council of India notified the Bachelor of Pharmacy (B. Pharm Course) Regulations, 2014 (hereinafter referred to as, 'Regulations, 2014'). Clause - 14(a) of the Regulations, 2014 provides that all students who have appeared for all the subjects and passed the First year Annual Examination are eligible for promotion to the second year and so on but failure in more than two subjects shall debar the student from promotion to the next class. Clause - 14(a) of the Regulations, 2014 is reproduced below : -
"14(a). Eligibility for the promotion to the next year. - All the students who have appeared for all the subjects and passed the First year Annual Examination are Eligible for promotion to the second year and so on. However, failure in more than two subjects shall debar him / her from promotion to the next year classes."
It would be relevant to notice that Clause - 6 of the Regulations, 2014 empowers the Pharmacy Council of India to prescribe the course of study for B. Pharm and Clause - 8 of the Regulations, 2014 empowers the PCI to prescribe the syllabus for each subject of study in the B. Pharm Course.
Subsequently, the PCI framed fresh Regulations titled as The Revised Regulations for the B. Pharm. Degree Program (CBCS). The Regulations shall hereafter be referred as Regulations, 2016. Clause - 1 of the Regulations , 2016 specified that they shall come into effect from the Academic Year 2016-17. Clause - 16 of the Regulations, 2016 provides that a student shall be eligible to carry forward all the courses of I, II and III semesters till the IV semester examinations but shall not be eligible to attend the course of V semester until all the courses of I and II semesters are successfully completed. Similarly, a student shall be eligible to carry forward all the courses of III, IV and V semesters till the VI semesters examinations but shall not be eligible to attend the courses of VII semester until all the courses of I, II, III and IV semesters are successfully completed. Clause - 16 of the Regulations, 2016 is reproduced below :-
"16. Academic Progression:
No student shall be admitted to any examination unless he/she fulfills the norms given in 6. Academic progression rules are applicable as follows:
A student shall be eligible to carry forward all the courses of I, II and III semesters till the IV semester examinations. However, he/she shall not be eligible to attend the courses of V semester until all the courses of I and II semesters are successfully completed.
A student shall be eligible to carry forward all the courses of III, IV and V semesters till the VI semester examinations. However, he/she shall not be eligible to attend the courses of VII semester until all the courses of I, II, III and IV semesters are successfully completed.
A student shall be eligible to carry forward all the courses of V, VI and VII semesters till the VIII semester examinations. However, he/she shall not be eligible to get the course completion certificate until all the courses of I, II, III, IV, V and VI semesters are successfully completed.
A student shall be eligible to get his/her CGPA upon successful completion of the courses of I to VIII semesters within the stipulated time period as per the norms specified in 26.
A lateral entry student shall be eligible to carry forward all the courses of III, IV and V semesters till the VI semester examinations. However, he/she shall not be eligible to attend the courses of VII semester until all the courses of III and IV semesters are successfully completed.
A lateral entry student shall be eligible to carry forward all the courses of V, VI and VII semesters till the VIII semester examinations. However, he/she shall not be eligible to get the course completion certificate until all the courses of III, IV, V and VI semesters are successfully completed.
A lateral entry student shall be eligible to get his/her CGPA upon successful completion of the courses of III to VIII semesters within the stipulated time period as per the norms specified in 26.
Any student who has given more than 4 chances for successful completion of I / III semester courses and more than 3 chances for successful completion of II / IV semester courses shall be permitted to attend V / VII semester classes ONLY during the subsequent academic year as the case may be. In simpler terms there shall NOT be any ODD BATCH for any semester.
Note: Grade AB should be considered as failed and treated as one head for deciding academic progression. Such rules are also applicable for those students who fail to register for examination(s) of any course in any semester."
It has been stated in the counter affidavit filed by the PCI that the Regulations, 2016 were uploaded on its official website. It has been stated by the counsel for PCI, on instructions, that the Regulations, 2016 have not yet been expressly approved by the Central Government and have not been published in the Official Gazette. It has been stated that the Regulations, 2016 have been sent to the Central Government for approval but no decision has yet been taken by the Central Government.
The Amity University has framed its own Regulations on conduct of examinations and scheme of evaluation among students in examinations. Under the Regulations framed by the University, a student has to obtain a CGPA of 5.0 to pass the academic session and a SGPA of 3.5 or CGPA of 4.5 to be promoted in the next academic session. The Regulations draw a distinction between 'pass' and merely being 'promoted'. The Regulations prescribed by the Amity University are not being referred in detail as admittedly the petitioner does not fulfill the criteria required to be promoted to the next academic session.
Clause - 22 of the Regulations framed by the Amity University provides that the programmes approved by the Statutory Bodies which includes the PCI the examination and the evaluation criteria will be followed as per their laid down provisions. Clause - 22 of the Regulations is reproduced below : -
"22. Programmes covered under Statutory Bodies In case of the programmes approved by Statutory Bodies such as AICTE, Council of Architecture, RCI, BCI, NCTE, PCI etc., the examination and evaluation criteria, will be followed as per their laid down provisions."
The facts of the present case is that the petitioner is a student of B. Pharm four year course in the University. The petitioner cleared his I and II semester examinations with SGPA of 6.43 and 7.09 respectively and obtained a CGPA of 6.78 in the II semester. The petitioner secured SGPA of 5.00 and CGPA of 6.21 in the III semester. However, in the IV semester, the petitioner got SGPA of 2.65 and CGPA of 5.27. In the III semester, the petitioner did not appear in two papers and failed in two subjects while in the IV semester, the petitioner failed in four subjects and was debarred from appearing in two subjects because of shortage of attendance. The petitioner applied for admission in V semester but was not admitted in the V semester (third year) because he did not fulfill the requirements prescribed by the University to be promoted to the next academic session. Hence, the present petition was filed for the following reliefs : -
"a) to issue a writ, order or direction in the nature of mandamus directing the Respondent No.3 & 4 to follow the directions to strictly comply the Rule No. 16 Academic Progression of Rules & Syllabus for the Bachelor of Pharmacy (B.Pharm) Course issued by the Pharmacy Council of India, framed under Regulation 6, 7 & 8 of the Bachelor of Pharmacy (B.Pharm) Course regulations 2014;
b) to issue a writ, order or direction in the nature of mandamus directing the Respondent No.3 & 4 to facilitate the extra classes for the Vth semester and thereafter hold supplementary exams and further permit the petitioner to participate in the for VIth Semester classes alongwith examination of IIIrd and Ivth Semester of B.Pharm;"
The petitioner claims that under the Regulations, 2016 framed by the PCI, the petitioner was entitled to carry forward the courses of III, IV and V semester till the VI semester and the petitioner could not have been denied admission in the V semester because he had failed in the III and IV semester and the University could not have denied him from appearing in the V and VI semester examinations. It has been further argued that in light of the judgment of the Supreme Court in Dr. Dr. S.K. Toshniwal (supra), the Regulations, 2016 framed by the PCI supersede the Regulations of the University, therefore, the status and rights of the petitioner have to be determined on the basis of the Regulations, 2016 framed by the PCI and not on the basis of the Regulations of the University. It has been argued that the Regulations, 2016 were in public domain and were followed by all educational institutions so far as B. Pharm Courses are concerned and the University is also bound by the said Regulations. It has been argued that the University never notified or informed its students that the academic merit as well as the eligibility of a student to be passed / promoted to the next academic session would be decided on the basis of the Regulations of the University and not on the basis of the Regulations, 2016. It has been argued that for the aforesaid reasons, the action of the University in denying the petitioner admission to the V semester and other subsequent examinations is arbitrary and unreasonable and violates the principle of fairness guaranteed under Article 14 of the Constitution of India and the petitioner is entitled to the reliefs as prayed.
Rebutting the arguments of the counsel for the petitioner, the counsel for the University has argued that the Regulations, 2016 have not been published in the Official Gazette and have not yet been approved by the Central Government, therefore, are not in force. It has been argued that the approval of the Central Government and publication in the Official Gazette are essential to bring in force any regulation framed under the Act, 1948. It has been further argued that the Regulations, 2016 were framed by the PCI in exercise of its powers under Regulations 6, 7 and 8 of the Regulations 2014, therefore, do not override the regulations of the University so far as the assessment of academic merit and entitlement of a student to be declared as passed / promoted to the next academic session is concerned. It has been further argued that the petitioner has failed to obtain the minimum criterion prescribed for being promoted to the third year / V semester, therefore, cannot claim any right to be admitted to the V semester classes or to appear in the said examinations. It has been argued that for the aforesaid reasons, the petition lacks merit and is liable to be dismissed.
I have considered the submissions of the counsel for the parties.
Before proceeding further, it would be relevant to note that by order dated 25.01.2024, the petitioner was granted interim protection and the University was directed to permit the petitioner to attend the classes of V and VI semesters. By order dated 07.03.2024, the University was directed to permit the petitioner to appear in the examinations but the results of the petitioner were not to be declared without the permission of the Court. It was clarified in order dated 07.03.2024 that no equitable right would accrue to the petitioner because of the interim orders of this Court.
The academic credentials of the petitioner have been narrated above. As noted above, the petitioner failed to secure minimum SGPA of 3.5 in the IV semester to qualify for admission in the V semester, therefore, under the Regulations of the University, the petitioner is not entitled to be promoted to IIIrd year / V semester. However, the petitioner claims promotion and admission to V semester under the Regulations, 2016 of the Act.
The dispute in the present petition relates to the applicability of the Regulations, 2016. The University pleads that Regulations, 2016 is still not in force for reasons noted earlier in the judgment.
The requirements prescribed in Section 10 of the Act, 1948 are different form the requirements of Section 18 of the Act, 1948. A reading of Section 10 of the Act, 1948 does not show that the Regulations framed by the PCI would come in force only after approval from the Central Government. The words used in Section 10(1) are different from the words used in Section 18(1). Section 18(1) empowers the Central Council to frame regulations 'with the approval of the Central Government'. Section 10 of the Act, 1948 provides that the Central Council, which in the present case is the PCI, may frame regulations 'subject to the approval of the Central Government'. Where the statute empowers an authority to do something subject to the approval of the higher authority or the Government, it may be done without seeking approval of the higher authority and will be rendered invalid only when it is disapproved by the higher authority. But where the statute provides that the authority shall act 'with the approval of the higher authority or the Government', then the authority has no power to act without obtaining the approval of the higher authority or the Government. In this context, it would be apt to refer to the judgment of a Division Bench of this Court reported in Mohammad Ali vs. The State of Uttar Pradesh & Ors. AIR (1958) Allahabad 681. In the aforesaid case, the Division Bench of this Court while interpreting Sections 68 and 69 of the U.P. Municipalities Act, 1916 observed as follows : -
"When a person is employed under a power which is to be exercised subject to the approval of a higher authority or the Government, the appointment holds good so long as the higher authority or the Government has not disapproved of it. There is a distinction between an appointment with the permission of a higher authority or the Government, and an appointment subject to the approval of the higher authority or the Government. An appointment which is to be made with the permission of a higher authority or the Government cannot be made unless the permission is first obtained, but an appointment which can be made subject to the approval of a higher authority or the Government may be made and will be rendered invalid only when it is disapproved by the higher authority. This distinction was pointed out by a Full Bench of this Court in Shakir Husain v. Chandoolal, AIR 1931 All 567 (A). Sir Shah Sulaiman, Acting Chief Justice, as he then was, observed :
"Ordinarily the difference between the approval and permission is that in the first the act holds good until disapproved, while in the other case it does not become effective until permission is obtained. But permission subsequently obtained may all the same validate the previous act."
In view of the aforesaid observations of the Division Bench in Mohammad Ali (supra), the Regulations framed under Section 10(1) do not require approval of the Central Government to come in force and would remain in force and operative till disapproved by the Central Government. However, the Regulations made under Section 18 would not come in force till approved by the Central Government. The Regulations, 2016 are in relation to academic standards, the standards to be attained in examinations and conditions of admission to examinations. Regulations, 2016 have been made under the powers conferred by Section 10 of the Act, 1948, therefore, do not require the approval of the Central Government to come in force and would be in force till disapproved by the Central Government. The Regulations have not yet been disapproved by the Central Government, therefore, they are in force.
The plea of the University that Regulations, 2016 has not been published in the Official Gazette as required in Section 10(4) and, therefore, not in force, is also not acceptable. Section 10(4) requires that the Regulations 'shall be published in the Official Gazette and in such other manner as the Central Council may direct'. The word 'and' is normally conjunctive but, under the rules of statutory interpretation and depending on the context, it is many times read as 'or'. If the literal reading produces an unintelligible and absurd result, the word 'and' can be, and should be, read as 'or'. Reading 'and' as 'and', i.e., as conjunction, in Section 10(4) would produce an absurd result. Reading 'and' as conjunction in Section 10(4) would make publication in the Official Gazette insufficient. The absurdity of reading 'and' as 'and' in Section 10(4) becomes more noticeable in view of requirements of Section 18(1) in which the only mode of publication is in Official Gazette. It was observed by the Supreme Court in Commissioner of Income Tax, New Delhi vs. Ram Kishan Dass (2019) 15 SCC 554 as follows : -
"20.2. Secondly, the alternate construction of the proviso is that the expression ?and for any good and sufficient reason? should be read to mean ?or for any good and sufficient reason?. As a matter of statutory interpretation, it is well settled that the expression ?and? can in a given context be read as ?or? (see in this context Ishwar Singh Bindra v State of U.P.)."
The publication in the Official Gazette as required under Section 10(4) is only one of the modes required for publishing the Regulations and the failure of the PCI to get the said regulations published in the Official Gazette would not be fatal to the validity or operation of the Regulations, 2016. Section 10(4) has to be read as 'The Education Regulations shall be published in the Official Gazette or in such other manner as the Central Council may direct'. The Regulations have been published on the official website of PCI.
In view of the aforesaid, the contention of the counsel for the University that the Regulations, 2016 are not operative and do not vest any right in the petitioner is not acceptable.
The contention of the counsel for the University that the Regulations, 2016 were framed by the PCI in exercise of its powers under Regulations 6, 7 and 8 of the Regulations, 2014 is also to be rejected. The Regulations, 2016 cover the field relating to the entitlement of a candidate to be promoted / passed to the next academic year and are for maintenance of academic standards. The fact that the cover page of the Regulations states that it has been framed by the Council in exercise of its powers under Regulations 6, 7 and 8 of the Regulations, 2014 would not restrict the field of the Regulations, 2016 if power of the PCI to frame regulations on the subject can be traced to Section 10 of the Act, 1948.
Apart from the aforesaid, the Regulations, 2016 were uploaded on the official website of the PCI, therefore, published as required under Section 10 (4) of the Act, 1948 and no steps were taken by the University to inform its students that the Regulations, 2016 shall not govern the entitlement of a student for being promoted to the next academic year. It was not expected from the students to verify as to whether the Regulations, 2016 were published in the Official Gazette or whether the Regulations, 2016 fulfilled the other requirements of Section 10 of the Act, 1948. The fact that the Regulations, 2016 continued to remain on the official website of the PCI, and may have been followed by many Universities while considering the entitlement of students to be promoted in the next academic year raises a legitimate expectation in the students of the Amity University also that they shall be governed by the Regulations, 2016 and not by the University Regulations.
In light of the judgment of the Supreme Court in Dr. S.K. Toshniwal (supra), the Regulations, 2016 supersede the University regulations. The status and rights of a student shall be determined by the Regulations, 2016. Regulations, 2016 shall prevail in case of any conflict between Regulations, 2016 and the regulations of the University. A perusal of the facts stated above especially the facts relating to the academic credential of the petitioner, show that the petitioner passed in all his subjects in the I and II semester examinations. The petitioner failed in his III and IV semester examinations. In light of paragraph no. 3 of Regulations, 2016, the petitioner was entitled to be admitted to V semester (Third Year of B.Pharm Course) and was entitled to appear in his V and VI semester along with his III and IV semester examinations, but would not be entitled to attend the course of VII semester till he clears his III and IV semester examinations.
For all the aforesaid reasons, the action of the University in denying the petitioner admission to V semester examinations was arbitrary and contrary to law and also violated the principle of fairness as provided in Article 14 of the Constitution of India.
The petitioner was permitted to attend his classes of V and VI semesters by the interim order of this Court and had also appeared in the examinations of VI semester, it is directed that the results of the VI semester examinations of the petitioner shall be declared and he shall be permitted to appear in his V semester examinations as stipulated in Clause - 16 of the Regulations, 2016.
With the aforesaid directions, the writ petition is allowed.
Order Date :- 23.8.2024 Vipasha/Satyam