IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 08/11/2002
CORAM
THE HON'BLE MR.JUSTICE E.PADMANABHAN
W.P. NO. 37141 of 2002
and W.P.Nos. 8231, 8866, 10305 and 13945 OF 2002
AND
W.P.M.P. NOS. 12039, 1247, 18823 and 55838 of 2002
W.P. No. 37141/2002
1. S.Manikandan and
5 others ..Petitioners
-Vs-
1. The Secretary,
Selection Committee
162, Periyar EVR High Road,
Kilpauk, Chennai-10
2. The Tamil Nadu Dr.M.G.R.Medical University
repd. By its Registrar, Guindy, Chennai
3. The Pearl Peace Medical Mission,
College of Pharmacy, through its Secretary
M.D.T.Hindu College Campus, Pettai,
Tirunelveli. ..Respondents
W.P. No. 8231/2002
1. K.Saravanakumar
and 13 others ..Petitioners
Vs.
1. The Government of Tamil Nadu
rep. by its Secretary
Health and Family Welfare Dept.,
Chennai-9
2. The Director of Medical Education
162, Periyar EVR High Road,
Kilpauk, Chennai-10
3. The Secretary,
Selection Committee
162, Periyar EVR High Road,
Kilpauk, Chennai-10
4. The Tamil Nadu Dr.M.G.R.Medical University
rep. By its Registrar, Guindy, Chennai.
5. All India Council of Technical Education
rep. by the Director
Block NO.5, Bharathi Bhavan
Nungambakkam, Chennai.
6. Pharmacy Council of India
rep. by its Manger,
Block E. First Floor,
Bharathiar Complex,
100 feet inner ring road,
Vadapalani, Chennai-26
7. The Pearl Peace Medical Mission,
College of Pharmacy, through its Secretary
M.D.T.Hindu College Campus, Pettai,
Tirunelveli ..Respondents
W.P. No. 7667 of 2002
1. P.Odayakumar and
16 others ..Petitioners
Vs.
1. 1. The Government of Tamil Nadu
rep. by its Secretary
Health and Family Welfare Dept.,
Chennai-9
2. The Director of Medical Education
162, Periyar EVR High Road,
Kilpauk, Chennai-10
3. The Secretary,
Selection Committee
162, Periyar EVR High Road,
Kilpauk, Chennai-10
4. The Tamil Nadu Dr.M.G.R.Medical University
repd. By its Registrar, Guindy, Chennai.
5. All India Council of Technical Education
rep. by the Director
Block NO.5, Bharathi Bhavan
Nungambakkam, Chennai.
6. Pharmacy Council of India
rep. by its Manger,
Block E. First Floor,
Bharathiar Complex,
100 feet inner ring road,
Vadapalani, Chennai-26
7. The Pearl Peace Medical Mission,
College of Pharmacy, through its Secretary
M.D.T.Hindu College Campus, Pettai,
Tirunelveli ..Respondents
W.P. No. 8866 of 2002
1. P.Ramaraja and
49 others ..Petitioners
Vs.
1. The Director of Medical Education
162, Periyar EVR High Road,
Kilpauk, Chennai-10
2. All India Council of Technical Education
rep. by the Director
Block NO.5, Bharathi Bhavan
Nungambakkam, Chennai.
3. Pharmacy Council of India
rep. by its Manger,
Block E. First Floor,
Bharathiar Complex,
100 feet inner ring road,
Vadapalani, Chennai-26
4. The Tamil Nadu Dr.M.G.R.Medical University
repd. By its Registrar, Guindy, Chennai.
5. The Correspondent,
Fathima Colege of Pharmacy
103, main Road,
Krishnapuram, Kadayanallur
Tirunelveli District. .. Respondents
W.P. No. 10305 of 2002
1. S.J.Anitha and
15 others ..Petitioners.
Vs.
1. 1. The Government of Tamil Nadu
rep. by its Secretary
Health and Family Welfare Dept.,
Chennai-9
2. The Director of Medical Education
162, Periyar EVR High Road,
Kilpauk, Chennai-10
3. The Secretary,
Selection Committee
162, Periyar EVR High Road,
Kilpauk, Chennai-10
4. All India Council of Technical Education
rep. by the Director
Block NO.5, Bharathi Bhavan
Nungambakkam, Chennai.
5. The Tamil Nadu Dr.M.G.R.Medical University
repd. By its Registrar, Guindy, Chennai.
6. Pharmacy Council of India
rep. by its Manger,
Block E. First Floor,
Bharathiar Complex,
100 feet inner ring road,
Vadapalani, Chennai-26
7. The Pearl Peace Medical Mission,
College of Pharmacy, through its Secretary
M.D.T.Hindu College Campus, Pettai,
Tirunelveli ..Respondents
W.P. No. 13945 of 2002
Unemployed Pharmacist Association
rep. by its Coordinator A.Pazhanivelswamy
13-2-25, Pillaiyar Koil St.,
Poolankudiyiruppu 627818
Shankottai Tk, Tirunelveli Dist., ..Petitioners
Vs.
1. The Registrar,
Pharmacy Council of India
Combined council Building
Kotla Road,
Awan-E Khatif Marg
New Delhi-2
2. The Registrar,
Tamil Nadu Pharmacy Council
Block E. First Floor,
Bharathiar Complex,
100 feet inner ring road,
Vadapalani, Chennai-26
3. The Director
Directorate of Medical Education
162, Periyar EVR High Road,
Kilpauk, Chennai-10
4. The Registrar,
The Tamil Nadu Dr.M.G.R.Medical University
Guindy, Chennai.
5. The Correspondent,
Fathima Colege of Pharmacy
103, main Road,
Krishnapuram, Kadayanallur
Tirunelveli District. ..Respondents
For Petitioners : Mr. V.Ramajagadeesan
(WP.No.8866 of 2002)
Mr.P.Jyothimani
(WP.Nos:7667, 8231 & 10305/2002)
Mr.S.P.L.Palaniappa
(WP.13945 of 2002)
Mr.N.Sudharsan
(W.P.No.37141 of 2002)
For Respondents : Mr.V.R.Rajasekaran Spl.G.P
Mr.V.T.Gopalan, Addl.Solicitor General
assisted by Mr.N.Muralikumaran,
ACGSC for Pharmacy Council of India
Mr.M.Vellaisamy for Dr.MGR University.
Mr.Vijay Narayan for AICTE
Mr.R.N.Amarnath for
The Correspondent, Fathima College
of Pharmacy.
Mr.R.Anand for The Pearl Peace
Medical Mission college of Pharmacy
Writ Petitions filed under Article 226 of The Constitution of India
praying for the issue of a Writ of Mandamus, as stated therein.
:O R D E R
PART-1 : PRELUDE
SHOCKING CONDUCT OF EDUCATIONAL INSTITUTIONS
& OMISSIONS OF AUTHORITIES
FACTS LEADING TO THE WRIT PETITIONS :
This batch of writ petitions palpably demonstrates the wasteful years
spent by few hundred students in
i) Fathima College of Pharmacy, Kadayanallur ;
ii) The Pearl Peace Medical Mission College & Pharmacy, Tirunelveli ;
and the huge expenditure incurred by their parents out of their hard earned
money with the object of settling the career of their respective
son/daughter. Neither the wasteful years, which the students have spent in
these two colleges could be saved by putting the clock back nor the parents
could save themselves from the financial burden they have so far borne and
further to be borne. Such a situation has been caused by the following
circumstances :
i) The two colleges for years together have for obvious reasons concealed and
suppressed their failure to secure approval/permission of All India Council of
Technical Education and the Pharmacy Council of India ;
ii) Dr.M.G.R. Medical University acted with callous indifference in granting
affiliation in favour of these two colleges without there being any permission
or approval by The All India Council of Technical Education and the Pharmacy
Council of India ;
iii) The State Government and the Selection Committee have included the
colleges in the list of validly established institutions, allotted and
admitted students under single window system in the said two colleges for few
years without any attempt to verify ;
iv) All India Council for Technical Education and the Pharmacy Council of
India have turned their nelson’s eye and sat in ivory towers by ignoring the
establishment of two colleges without their permission and allowing the said
two colleges to run the courses for years together without taking any action,
despite intimation as to grant of affiliation by the University ;
v) Dr. M.G.R. Medical University has granted affiliation ignoring the
provisions of AICTE Act and the Pharmacy Act and granted affiliation to the
said two colleges without permission or approval of the said two bodies and
without even infrastructure as has been reported by the inspection committee
and the University has granted affiliation while imposing certain conditions
and one of the condition being getting approval of All India Council of
Technical Education and the Pharmacy Council of India and this is nothing but
putting the horse behind the cart.”
2. As a result, all the students who have undergone the course and
even passed the examination conducted by the University are disabled from
registering themselves with the Pharmacy Council of India as they have
acquired degree in Pharmaceutical Science by undergoing course in the said two
unapproved institutions and lost their valuable part of their life, besides it
has frustrated the students and their career and also defeated the hopes of
their parents.
3. Though the situation is pathetic and it has to be considered with
compassion, but there is neither equity nor there is any just reason for the
Court to exercise its powers in favour of the petitioners as compassion or
sympathy will result in violation of mandatory provision of law, which is
impermissible as laid down by the Supreme Court in various pronouncements.
The above scenario is shocking and even after settlement of legal principles,
the two college authorities, academicians employed in the college, University,
State, the Selection Committee, the All India Council of Technical Education
and the Pharmacy Council of India have contributed either deliberately or
knowingly or by inaction resulting in deprivation of valuable part of life for
the younger generation. It is clear that these two institutions are nothing
but “educational shops” and they are to be closed down forthwith by orders of
this Court till they secure approval of the AICTE and Pharmacy Council and
fresh affiliation from the University.
4. Six petitioners have joined together and filed w.P.No.37141 of 20
02 praying for the issue of a writ of mandamus directing the respondents 1 and
2 to transfer the petitioners to any other approved college of Pharmacy in the
State of Tamil Nadu to enable them to continue their first year B-Pharm course
and complete the same so as to facilitate them to register them as Pharmacist
under the Pharmacy Council of India after completion of the course.
5. W.P.No.8231 of 2002 has been filed by 14 writ petitioners praying
for the issue of a writ of mandamus or any other writ or direction directing
the respondents 1 to 4 herein to transfer the petitioners to any other
approved college in the State of Tamil Nadu and enable them to continue third
year B Pharmacy course, complete the same to facilitate the petitioners to
register as Pharmacist under the Pharmacy Council of India after successful
completion of the course.
6. Writ Petition No.7667 of 2002 is moved by the 17 petitioners for
the issue of a writ of mandamus directing the respondents 1 to 4 herein to
transfer the petitioners to any other approved college in the State of Tamil
Nadu and enable them to continue their 4th year B Pharmacy course, complete
the same to facilitate the petitioners to register as Pharmacist under the
Pharmacy Council of India after successful completion of the course.
7. Fifty petitioners have joined together and filed W.P.No:8866 of 2
002 praying for the issue of a writ of mandamus directing the respondents to
transfer all the petitioners to any one of the approved college of B-Pharm in
the State of Tamil Nadu approved by the second respondent and registered with
the third respondent to complete their B Pharmacy course, so as to facilitate
the petitioners to register as Pharmacist under the Pharmacy Council of India
after successful completion of the course.
8. S.J.Anitha and fifteen others have joined together and filed
W.P.No.10305 of 2002 for the issue of a writ of mandamus directing the
respondents 1 to 4 to transfer the petitioners to any other approved approved
college of pharmacy in the State of Tamil Nadu so as to enable the petitioners
to continue their second year B-Pharm course and successfully complete the
course for registration as Pharmacist under the Pharmacy Council of India.
9. W.P. No. 13945 of 2002 has been filed by the unemployed
Pharmacists Association represented by its coordinator A.Pazhanivelswamy for
the issue of a writ of mandamus directing the first respondent to grant
permission to the fifth respondent on complying with the rules and regulations
of the Pharmacy Act 1948 and further directing the first respondent to obtain
recognition for the 5th respondent college from the first respondent
retrospectively from the academic year 1993 -94 to update on or before the end
of the month of May, 2002.
10. In this batch of writ petitions, the factual matrix being
identical, at the joint request of the counsel for the writ petitioners as
well as the respondents, the above six writ petitions were consolidated and
taken up for final disposal. Factually there is no controversy and the facts
which are common could be set out conveniently while discussing the only
point:
“Whether the petitioners are entitled for a direction to transfer them from
the two unapproved colleges to other approved colleges?”
III. Factual position :
11. Concedingly, Fathima College of Pharmacy, located at
Krishnapuram, Kadayanallur, Thenkasi Taluk, Tirunelveli District and the Pearl
Peace Medical Mission College of Pharmacy, located at M.D.T.Hindu College
Campus, Pettai, Tirunelveli District, are the two colleges in which the
petitioners in all these writ petitions and hundred others were admitted to
B-Pharm course during the last few years as if the establishment of the said
two institutions have been validly approved by the All India Council for
Technical Education and the Pharmacy Council of India, New Delhi. Factually
both the institutions though they have applied to the said two authorities for
permission/approval intermittently to establish a college of pharmacy, till
date the two colleges have miserably failed to secure the required
permission/approval of the said two central council.
12. In other words, without securing the permission/approval of All
India Council for Technical Education, (hereinafter referred as AICTE), as
well as Pharmacy Council of India, the said two colleges have established
their respective college, admitted students through single window and
conducted the course and in fact one or more batches of students have already
left the college.
13. The fact that the said two institutions did not have the
approval/permission of the AICTE as well as Pharmacy Council was not mad known
to any one including the students till the students who came out of the said
two colleges applied for registration with the Pharmacy Council and their
applications were rejected on the sole ground that the said applicants have
not attended the courses in the colleges approved by the said two council.
The fate of those students are still hanging. Apart from the students who
have completed the course, there are other students who are now studying in
the first/second/third/ final year as the case may be, in the said colleges
are the petitioners in this batch of writ petitions.
14. Apart from the said admitted fact, two other startling facts have
to be pointed out. They are (I) The Tamil Nadu Dr.M.G.R Medical University,
(hereinafter referred as the University) has granted affiliation to these two
institutions for conferring Degree in Pharmacy and which affiliation has been
in force from the inception of the colleges. (II) on the University
addressing the State Government and the Selection Committee, the Selection
Committee has admitted students under the Single Window System for both the
colleges for the past few years. The students so admitted in the two colleges
are substantial in number while a few were also admitted under the management
quota.
15. It is rather surprising and shocking as to how the University has
granted affiliation without the approval or permission of AICTE or the
Pharmacy Council of India and it is shocking that the Selection Committee has
selected candidates under the Single Window system and allotted substantial
number of candidates to the said two pharmacy collages.
16. For the past several years the colleges have managed to secure
affiliation and students were being allotted by the Selection Committee under
the Single Window System. These startling facts which are rather
extraordinary are not in dispute nor it could be ignored. Who has contributed
for this situation is a Question which looms large and deserve to be focussed
in these batch of writ petitions.
17. This court will not be justified in sympathasing with the
colleges as the two colleges have admitted students who are undergoing the
course or who have already completed the course, with full knowledge that they
have not secured approval and the merit listed students who joined for a
professional carrier, taken for a ride with the connivance of the University
or the State Authorities, who have not chosen to verify the minimum
requirements in respect of these two institutions. It is a well known fact
that before ever granting No Objection Certificate or forwarding the
application to AICTE, the State Government as well as the University
Authorities in respect of all the institutions hitherto invariably taking such
a stand that nobody could easily secure NOC, assuming that such a Certificate
is required and they have to fight a battle of litigation against the State
Government and University in respect of professional colleges. When such is
the factual position it is not known as to how the University has granted
affiliation and how the Selection Committee has selected the candidates under
the Single Window System and allotted the candidates for being admitted to
both the institutions, which is an extraordinary situation and conduct which
neither the University nor the State or the Selection Committee could explain
at all except pointing out each other.
18. The well settled legal position is that without securing the
approval/permission AICTE and the Pharmacy Council, no technical institutions
leading to the Degree in Pharmacy could be established. Only after getting
the approval of the said two authorities namely AICTE as well as Pharmacy
Council of India, if at all the institutions could approach the University for
affiliation. Copy of the Affiliation Proceedings was placed before the Court
in respect of the institutions, which would show that the University has
granted affiliation subject to the two institutions getting approval of the
AICTE and Pharmacy Council of India. This approach of the University is
nothing but putting the horse behind the cart, a total negation of settled
legal position and illegality committed and for best reasons known to it.
Such an approach is shocking and extraordinary and this court is unable to
comprehend such conduct, which has seriously affected few hundred students, as
they are being thrown to streets and their parents who have already spent
substantial sum have been made to lose heavily.
19. Much could be said against the said two institutions and they
cannot plead ignorance, nor they could plead that their action is bona fide.
However, it is left open to the students to take appropriate action against
the two institutions. The two institutions except repeating that they have
got affiliation and students were admitted through Single Window System, at
one stretch embolden to contend AICTE/ Pharmacy council permission is not
required and also suggested that they have applied for AICTE and Pharmacy
Council of India for approval/permission and they are yet to be approved.
Therefore it is not necessary to refer to the counter affidavit filed by the
two institutions.
20. On behalf of The Tamil Nadu Dr.M.G.R.Medical University, in
W.P.No.8866 of 2002, it has been stated that the State Government in G.
O.Ms.No.95, Health and Family Welfare (MEII) Department, dated 29.1.19 93
permitted the Secretary, Mohideen Batcha Eductional Committee, Kadayanallur to
start I B.Pharmacy Degree course from the academic year 1993-94 within an
annual intake of 50 students. The Governing Council of the University by a
resolution dated 23.6.1994 granted provisional affiliation to Fathima College
of Pharmacy for starting 1st year B.Pharmacy degree course from the academic
year 1993-94. Thereafter the affiliation was continuously granted upto the
Academic year 1998-99.
21. According to the counter, the inspection committee inspected the
college for the year 1999-2000 with respect to the proposal for continuance of
provisional affiliation, which committee pointed out lot of deficiencies after
inspection. Once again another committee inspected for continuance of
provisional affiliation for the academic year 2 000-2001 and a report was
placed before the Affiliation Sub Committee in its meeting held on 28.2.2001.
The Sub Committee observed that the said institution had not taken any effort
to rectify the deficiencies repeatedly pointed out and hence the said
committee recommended to issue a show cause notice to the institution for not
improving its infrastructure facilities.
22. These again exhibits the colossal attitude of the university in
granting affiliation and extending without infrastructure at all for several
years. The Governing Council approved the recommendation in its meeting held
on 9.3.2001. A show cause notice was issued to the institution on 9.4.2001 as
to why the continuance of provisional affiliation granted for conducting
B-Pharm Degree course should not be withdrawn as the institution has not
obtained and produced the Pharmacy Council of India/AICTE approval and for
deficiencies in regard to infrastructure facilities. It is rather curious
such a thing dawned upon the university for the first time after grant of
affiliation for several years. The University also recommended to stop the
admission of I year B-Pharm course in that context. Therefore the name of the
institution has not been included in the prospectus for 2001-2002 under single
window system of admission.
23. Yet,after receipt of explanation from the College, the University
Governing Council by its resolution dated 29.6.2001 resolved to reduce the
seas from 50 to 25 for the Academic year 2001-2002 and the same has been
intimated to the Selection Committee for information and necessary actin. The
Governing Council also resolved for the continuance of provisional affiliation
for the years 1999-2000, 2000-2001 in its meeting held on 21.7.2000. The said
institution was warned severely to obtain the approval of AICTE and Pharmacy
Council of India and also intimated the institution that admission for the
year 2002 -2003 will be stopped completely.
24. For the year 2002-2003 no provisional affiliation has been
granted for want of permission by the Pharmacy Council of India as well as
AICTE and as the deficiencies pointed out have not been rectified. As a
result of which, the name of the college has not been recommended to the
Selection Committee for allotment of candidates. These startling revelations
are shocking and such omissions stare at the Medical University.
25. It is submitted by the learned counsel for Pharmacy Counsel that
transfer of students from the said Fathima College of Pharmacy or Pearl Peace
Mission College to any other college cannot be considered at all, as transfer
is permissible with the approval of Pharmacy council only from one recognised
Pharmacy College to another recognised college of Pharmacy as per the Pharmacy
council of India Act and also as per the University Regulations. In terms of
Section 35A of the Tamil Nadu Dr.M.G.R.Medical University Act, 1987 the
admission is being done by the Government through the Selection Committee
under single window system and transfer/shifting if any has to be by the
orders of the Government and Director of Medical Education from one approved
to another approved institution.
26. It is relevant to refer to the counter affidavit filed by the
AICTE in W.P.No.8231 of 2002. On 20th September, 2001 the Pearl Peace Medical
Mission made an application for establishment of a New Technical institution
during the academic year 2002-2003. In that application, it is disclosed by
the said college that it has applied during the year 1997 and it is admitted
by the said Mission that no approval has actually been granted. In Column
NO.9 relating to Track Record of the institution, it is stated by the
Institution that it was established in the year 1996 and that it was in the
5th year of operation.
27. It is pointed out that the approval from AICTE is necessary for
establishment of the institution and such approval has not been granted till
date. Till approval is obtained the no college could be established and
administered as a technical institution. It is clear that the said college
has acted in violation of the said provisions since 1996 in establishing the
institution without the approval of AICTE. It is further stated that the
students are undergoing the course commencing from first year to final year.
28. The circumstances under which the Selection Committee has
allotted the students to the said institution is not known to AICTE.
Declaration of results is also equally illegal and in violation of mandatory
provisions. It is further stated that appropriate action should be taken
against the management of the colleges for conducting the course in violation
of law. The AICTE has prayed for dismissal of the writ petitions.
29. In WP.No.8866 of 2002, the AICTE has set out thus in the counter
affidavit.
“The respondent college submitted application on 19.9.2001 containing a
proposal for the establishment of a new technical institution for the academic
year 2002-2003. Till this date, no approval has been granted by AICTE for the
said college. Though the college has claimed that it is running the college
since academic year 1993-94 it has not secured the approval and therefore it
is clear that establishment of this institution is in violation of AICTE Act
and the Regulations. Only during the year 1998 the College has acquired the
land. B Pharm course is a four year course. AICTE is not in a position to
assess the total number of students studying in various years and number of
students who have passed out earlier. AICTE has granted approval on the basis
of application on 10.6.2002 for the year 2002-2003 with a sanctioned intake of
50 students. The students who have been admitted earlier to 2002-2003 have
not been admitted pursuant to an order of approval of AICTE. It is contended
that the petitioners are not entitled to any relief”.
30. The State Government also filed separate counter in W.P.Nos:7667
, 8231, 8866, 10305 and 13945 of 2002. As seen from the counter, the State
Government has prescribed the norms and conditions for granting permission to
private educational institutions to start BDS/BPharm courses on self financing
basis. As per Condition No.6 in the annexure, a private self financing
college should get recognition from the Pharmacy council of India and AICTE
before the first batch of candidates pass out from the institution. Condition
No.22 stipulates that self financing institution shall fulfill the
requirements stipulated by Pharmacy council of India and the Tamil Nadu
Dr.M.G.R.Medical University.
31. The State Government granted permission to Mohideen Basha
Educational Committee to start B Pharmacy degree course from the academic year
1993-94 with annual intake of 50 students in G.O.ms.No.95, Health and Family
Welfare dated 29.1.1993. So also the Government has issued orders in
G.O.Ms.No.808 Health and Family Welfare Department dated 8.6.1993 permitting
the Pearl Peace Medical Mission to start B. Pharm course with an annual
intake of 50 students, subject to the conditions stipulated in
G.O.Ms.No.190,Health and Family Welfare Department dated 30.8.1991. According
to the stipulations the institution should approach the Pharmacy Council of
India for approval, which is one of the conditions imposed. The two
institutions approached Dr.M.G.R. Medical University for affiliation and the
Medical University granted affiliation to the said two institutions. The
petitioners were admitted through single window system or through centralised
Counseling.
32. Transfer from one Pharmacy college to another pharmacy college
falls within the purview of the concerned University and Pharmacy council of
India as per circular of Pharmacy council of India issued on 1 2.6.2001. A
student can seek for migration from one institution to another institution
provided both the institutions are recognised. Such transfer shall not exceed
5% of the total intake of the strength sanctioned by the Pharmacy council of
India.
33. It is stated that the State Government has first granted
permission subject to the condition that the Self Financing College should get
the registration from the Pharmacy Council of India. The two institutions
have violated the statutory provisions and proceeded to conduct classes merely
on the basis of affiliation granted by Dr.M.G.R. Medical University and
admission under single window system.
34. The selection committee has acted upon the list of affiliated
colleges furnished by the University. As the University has granted
affiliation the State Government and the Selection committee have not chosen
to countercheck or verify the correctness of the affiliation granted by the
University, nor they cared to verify whether permission has been secured from
Pharmacy council and AICTE. On the communication received from the
University, students were admitted under Single Window System.
35. It is admitted that the few of the petitioners who have passed
B.Pharm Course are not in a position to register themselves with the Pharmacy
Council of India for want of approval from AICTE and the Pharmacy Council of
India. Such a situation has been created by the self financing colleges which
have deliberately failed to approach the AICTE and Pharmacy Council properly
to get permission/approval. The two institutions are liable to compensate the
students as well as liable for penal action if they have collected extra sums
other than the fees notified by the Government.
36. As the AICTE and the Pharmacy Council are the competent
authorities, the State Government is not in a position to find any solution to
the problems faced by the writ petitioners.
37. The Director of Medical Education has already addressed the
Pharmacy Council of India on 21.3.2002 for redistributing the students from
the unapproved self financing colleges to the approved/recognised colleges in
the State. The Pharmacy council of India turned down the proposal by
informing the Director of Medical Education that transfer of students from one
college to another college is possible only when the two colleges are
recognised by the Pharmacy Council of India.
38. In view of the said stand taken by the Pharmacy Council of India,
neither the State Government nor the Director are in a position to solve the
problems faced by the students, who could not get themselves registered with
the Pharmacy Council of India. Yet, the State Government prayed for dismissal
of all the writ petitions.
39. The Pharmacy Council of India has stated in its counter affidavit
in W.P.NO:7667, 8231, 10305, 8866 and 13945 of 2002. The Pharmacy Council of
India referred to various provisions of the Pharmacy Council Act and the
stipulations in respect of establishment of a college of Pharmacy. Pearl
Peace Medical Mission approached the Pharmacy Council of India on 1.12.1999
for approval for its pharmacy course. The Pharmacy Council on submission of
the prescribed format, by reply dated 11.11.1999 conveyed the shortcomings in
the Standard Inspection Form. Though the college has submitted a number of
representations it was found that necessary facilities and infrastructure have
not been provided and the same has been communicated by the Pharmacy Council
to the college. The Pharmacy Council also returned the Demand Draft for
Rs.40,000/= besides pointing out various shortcomings in its letters dated
20.12.1995, 9.6.2002 and 9.8.2000. The college was reminded and there was no
response. The college was called upon to state as to whether the approval of
AICTE has been secured. The Pharmacy council after receipt of the reply
intimated the institution by letter dated 17.4.2001 that assurance cannot be
treated as compliance and called upon the college to rectify the deficiencies.
Later there has been exchange of correspondence. But no approval has been
granted by the Pharmacy Council of India so far. The above facts are not in
controversy.
40. It is further pointed out that the students should have been
careful and it is their duty to confirm the bona fide of the institution which
offer the course on which their future and their entire career depends. The
course offered by the institution is not an approved course either by AICTE or
by the Pharmacy Council of India. The petitioners are not entitled to invoke
the writ jurisdiction. The Pharmacy council cannot be compelled to register
the candidates who secured degrees through the said institutions as it would
amount to playing with the health of the public. The students have not
studied substantial portion of the syllabus and such students having undergone
course in an unapproved institution cannot seek the relief of mandamus. The
Pharmacy Council is in no way responsible for the omission or commission on
the part of the college or the University or the Selection Committee.
41. The relief prayed for cannot be granted as the students cannot
get themselves admitted in an unapproved institution and they are not eligible
to sit for the examination and consequently they are not entitled to claim
registration. Section 12 of the Pharmacy Council Act is mandatory and the
institution could not have established a college without the prior approval of
AICTE or Pharmacy Council of India. It is also pointed out that no relief has
been prayed for as against the Pharmacy Council. Unless and until the two
institutions are approved by AICTE and Pharmacy Council of India the transfer
of students is not feasible.
42. The Pharmacy Council in sum and substance pointed out thus in
respect of the both institutions.
(a) The seventh respondent institution is not an approved institution
under Section 12 (1) of the Pharmacy Act for the conduct of the B Pharm course
;
(b) As the course of study in which the petitioner students have
undergone was not approved under Section 12(1) of the Pharmacy Act, the
petitioner students are not eligible to sit in the examination under Section
12(2) of the Pharmacy Act ;
(c) The petitioners did not approach the Pharmacy Council for
finding out the approval or real status of the seventh respondent college
before taking admissions ;
(d) If the prayer of the petitioners is acceded, it will not only
in disregard to the provisions of the Pharmacy Act, but may tantamount to
playing with the health of the public which is of prime importance because the
petitioners have not undergone an approved training required for registration
as a pharmacist ;
(e) If the prayer is acceded, it will set a wrong precedent for
similarly situated students who have passed from an unapproved institution to
claim registration and may open floodgates of litigations ;
(f) If the prayer is acceded, it will encourage the institutions
not to take the approval of the pharmacy council of India for running a course
of study and examination leading to registration as a pharmacist and thereby
the very purpose of the enactment of the Pharmacy Act and the constitution of
the Pharmacy Council of India would be defeated ;
(g) It will set a wrong precedent for similar unapproved
institution to run unapproved course and later on seek for transfer to other
approved institutions ;
(h) If transfer from unapproved institutions to approved
institution is allowed, it will increase the intake capacity in the approved
institution which is approved for a specific intake capacity, thus leading to
dilution of the educational standards.”
43. The colleges themselves have filed a counter denying the
allegation that the students have been mislead by them and fraudulently acted
in a manner to cheat the petitioners by not disclosing the fact that the
colleges have not been approved by AICTE and by Pharmacy Council of India. It
is claimed that the college has acted as per the directions of the Selection
Committee and admitted students. It is not correct to state that the college
has mislead the students and falsely represented as if the college has been
approved. No complaint has been received from any of the students. The
students have appeared for the entrance examination which was conducted by the
Selection Committee and thereafter they were allotted to the respondent
colleges and they have rightly presumed that both the collages are approved
institutions and they are authorised to conduct the course.
44. It is true that the colleges in their respective prospectus have
referred to the G.O by which the State Government has granted approval and the
details of affiliation given by Dr.M.G.R.Medical University. Transfer of
students will result in monetary loss and administrative problems. Therefore
the colleges pray for dismissal of the writ petitions. Identical counters
have been filed in the remaining writ petitions.
45. Fathima college of Pharmacy while admitting that the second
respondent AICTE and Pharmacy council have declined to grant
permission/approval uptill now, it is stated that many colleges are
functioning without the permission of the Pharmacy council of India or AICTE
in the State. Out of eight colleges who have applied, only S.A.Raja College
for Pharmacy alone was granted permission during the year 2002-200 3 by the
second respondent. It is the practice of the AICTE and Pharmacy Council to
grant retrospective approval. It is submitted that Mohideen Basha Educational
Committee started the college in good faith and that permission of the third
respondent is not mandatory.
46. It is also extraordinary to contend that the college was made to
believe by many people conversant with educational institutions and the
University that NOC granted by the Director of Medical Education and the
affiliation granted by the University will be sufficient for all purposes and
enable the college to admit students and get recognition from AICTE and
Pharmacy Council of India. The college has no intention to cause wrongful
loss. Number of students have taken up the examinations conducted by the
University at various levels. Four students are writing first year, 13
students writing second year, 12 students are writing third year and 4
students are writing 4th year and rest of the students are writing arrears.
IV. Discussions on the Point :
47. From the above admitted facts set out above the two colleges as
detailed in the counter affidavit filed by the University, the State
Government, AICTE and the Pharmacy Council, it is clear that, till date
approval has not been secured by the two colleges to establish a Pharmacy
college either from the AICTE or from Pharmacy Council. As already pointed
out the University has granted affiliation without insisting for production of
approval/permission by AICTE and Pharmacy Council of India before ever taking
up the application for affiliation submitted by the institutions for
consideration. In this case it is the reverse which the University has
adopted for reasons best known. It is not only illegal but it is with an
obvious intention to help the two institutions and with full knowledge of
implications.
48. The University has conveniently prescribed a condition that
affiliation is granted subject to the institution getting approval from AICTE
and Pharmacy Council, which approach is impermissible in law. The very
affiliation by the University could be granted only if the institutions are
approved by AICTE and Pharmacy Council of India, which authorities have to
consider the application for approval for locating the college of Pharmacy in
terms of the statutory provisions of the two central enactments. The role of
the University to grant affiliation starts only after full compliance of the
statutory requirement under the two central enactments and not at any time
earlier since the University is first concerned with academic matters.
49. The institutions have miserably failed to secure approval/
permission from the two competent bodies for several years. That being the
admitted factual position it is rather extraordinary for the University to
have granted affiliation continuously and so also for the selection committee
to have admitted and allotted students to the two institutions not just for a
year or two, but for a number of years continuously.
50. The students have been obviously made to believe that the
colleges are approved institutions, as they are affiliated and the selection
committee has allotted the students under Single Window System to the two
institutions. It is stated by the State Government that on the basis of the
affiliation it has included the two institutions in the list of Pharmacy
colleges validly established and on that basis the students have been
admitted. This again is not a responsible stand of the State Government or
the Selection Committee. For the same reasons, the University’s stand and
actin also cannot be held to be a responsible one. But for the omission or
commission on the part of the University such conduct for a year could be
taken as omission by over sight, but for a number of years it is a deliberate
one. This conduct deserves to be deprecated strongly. This is so on the part
of the Selection Committee. The petitioners who appeared in the common
entrance examination and applied for admission to B-Pharm course should not
have been admitted to the two institutions which are unapproved and which have
not been established legally as a college of Pharmacy in terms of the AICTE
Act as well as the Pharmacy Council Act.
51. Mr.Elamurugan, learned counsel sought to contend that it is not
necessary to secure approval of Pharmacy council. This court is unable to
countenance such a contention as it would amount to ignoring the statutory
provisions of the Pharmacy Council Act as well as AICTE Act. The colleges
have not taken appropriate action for getting approval or permission from
AICTE or Pharmacy Council fro several years and they are sitting silent and
hundreds of students being made to suffer as a result of the concealment of
facts by the two institutions and omission on the part of Dr.M.G.R.Medical
University as well as the State Government.
52. This court with a view to find out the feasibility of
transferring the students from the the two institutions to any other
approved/recognised and affiliated institution called upon the counsel for the
University as well as the State Government to get instructions. It is
reported by the counsel for the University as well as the State Government
that vacancies are available in various approved/ recognised and affiliated
institutions in the State for the first year, second year, third year as well
the fourth year.
53. Mr.Muralikumaran, learned Standing Counsel appearing for the
Pharmacy Council of India as well as Mr.Vijay Narayan, learned standing
counsel appearing for AICTE contend that so long as the two institutions are
not approved by AICTE and Pharmacy Council, the students who have undergone
studies in the unapproved colleges cannot be transferred to any other college
as if have undergone the course in an approved institution. That apart, these
institutions do no possess any infrastructure and any direction in this
respect would be compelling the respondents to commit an illegality or violate
the statutory provisions, which govern the two bodies. There is force in the
submissions made by Mr.Mulralikumaran as well as the contentions advanced by
Mr. V.T.Gopalan, learned Additional Solicitor General, appearing for the
Pharmacy Council in this respect.
54. In respect of the two institutions, this court could definitely
restrain the two institutions from admitting students any further for the
current year as well as for the future till the two institutions are approved
by AICTE as well as Pharmacy Council and get fresh orders of affiliation from
the University. The earlier affiliation if any being void cannot be relied
upon by the two institutions.
55. Mr.Elamurugan, learned counsel appearing for one of the
institution sought to rely upon pronouncement of the Apex Court in
Bharathidasan University VS. AICTE reported in AIR 2001 SC 2861 in support of
his contention that it is not necessary to secure prior approval of AICTE.
The reliance placed upon the said pronouncement is a misconception and the
said pronouncement has no application. In the said case it has been held that
Bharathidasan University which has been created by Bharathidasan University
Act is not required to seek prior approval of AICTE to start a department for
imparting a course or programme in technical education or a technical
institution, as such institution is an adjunct to the University itself to
conduct technical courses of its choice and selection.
56. In this respect it is to be pointed out that the Supreme Court in
the said case examined the contention whether Bharathidasan University should
seek prior approval of AICTE to start a department for imparting a course or
programme in technical education or a technical institution as an adjunct to
the University itself to conduct technical course of its choice and selection.
It should not be forgotten that the appellant in the said case before the Apex
Court is the Bharathidasan Univeristy, which is governed by the Bharathidasan
University Act. Bharathidasan University proposed to start course in
Technology such as Information Technology and Bio-engineering technology,
Petrochemical Engineering Technology, Pharmaceutical Engineering Technology
etc. The AICTE moved the High Court for a writ of mandamus to forbear the
University from running any course and programme in those technical courses.
While considering the said contention the writ petition was allowed by a
Single Judge and it was also affirmed by the Division Bench of this Court.
57. The Apex Court reversed the judgment of the High Court and held
thus:-
“15. To put it in a nutshell, a reading of Section 10 of the AICTE Act will
make it clear that whenever the Act omits to cover a ” university”, the same
has been specifically provided in the provisions of the Act. For example,
while under clause (k) of Section 10 only ” technical institutions” are
referred to, clause (o) of Section 10 provides for the guidelines for
admission of students to “technical institutions” and “universities” imparting
technical education. If we look at the definition of a “technical
institution” under Section 2(h) of the Act, it is clear that a “technical
institution” cannot include a ” university”. The clear intention of the
legislature is not that all institutions whether university or otherwise ought
to be treated as ” technical institutions” covered by the Act. If that was
the intention, there was no difficulty for the legislature to have merely
provided a definition of “technical institution” by not excluding “university”
from the definition thereof and thereby avoided the necessity to use alongside
both the words “technical institutions” and university in several provisions
in the Act. The definition of “technical institution” excludes from its
purview a “university”. When by definition a ” university” is excluded from a
“technical institution”, to interpret that such a clause or such an expression
wherever the expression ” technical institution” occurs will include a
“university” will be reading into the Act what is not provided therein. The
power to grant approval for starting new technical institutions and for
introduction of new courses or programmes in consultation with the agencies
concerned is covered by Section 10(k) which would not cover a “university” but
only a “technical institution”. If Section 10(k) does not cover a ”
university” but only a “technical institution”, a regulation cannot be framed
in such a manner so as to apply the regulation framed in respect of “technical
institution” to apply to universities when the Act maintains a complete
dichotomy between a “university” and a “technical institution”. Thus, we have
to focus our attention mainly to the Act in question on the language adopted
in that enactment. In that view of the matter, it is, therefore, not even
necessary to examine the scope of other enactments or whether the Act prevails
over the University Act or effect of competing entries falling under Entries
63 to 65 of List I vis-à-vis Entry 25 of List III of the Seventh Schedule to
the Constitution.”
58. In my considered view, the reliance placed on the said
pronouncement of the Supreme Court by Mr.Elamurugan has no application and it
is clearly distinguishable. That apart, the contention advanced by
Mr.Elamurugan is against the very teeth of the provisions of the Pharmacy
Council Act, 1948 in particular Section 10A of the Act which is mandatory. So
also there is an identical provision in The All India Council for Technical
Education Act, 1956 which need not be elaborated in the light of various
binding pronouncements of the Supreme Court.
59. In Jaya Gokul Educational Trust Vs. Commissioner & Secretary to
Govt., Higher Education Dept., reported in 2000 (5) SCC 231, while following
the decisions reported in State of T.N. Vs. Adhiyaman Educational & Research
Institute (1995 (4) SCC 104) and Thirumuruga Kirupananda Variyar Thavathiru
Sundara Swamigal Medical Educational & Charitable Trust Vs. State of T.N.
(1996 (3) SCC 15), the Apex Court held that for established technical
institutions like Engineering or Pharmaceutical or Dental or Medical, the
provisions of the Central Act alone are required to be complied with.á
Affiliation is a different matter and the approval or permission of AICTE or
Dental Council or Medical Council or Pharmacy Council is the pre-requisite for
obtaining affiliation from the University, though conditions that may be
imposed by the University may not be inconsistent with the provisions of the
Central Act.á In other words, grant of approval for established educational
institutions is the primordial requisite even for an University to grant
affiliation.
60. Therefore it follows, without the approval or permission of AICTE
or Pharmacy Council of India no college could be established and the grant of
affiliation without approval or permission is void and the same will not
confer any right either on the institutions, which secured affiliation nor the
students could derive any kind of benefit by their undergoing course in these
unapproved institutions, be it a year or two years or for the entire course.
61. Mr.V.T.Gopalan, learned Additional Solicitor General rightly
contended that the students of unauthorised colleges are not entitled to a
direction from the Court to permit them to sit in examination or to
accommodate in any recognised institution to pursue their studies. The
learned counsel relied upon the pronouncement in State of Maharashtra Vs.
Vikas Sahebrao Roundale, reported in AIR 1992 SC 1926. The Apex Court in the
said pronouncement held thus:-
“11…..The teacher needs, not only the training at the inception, but also
periodical orientations in this behalf so that the children would reap the
rich benefit thereof. The ill-equipped and ill-housed institutions and
sub-standard staff therein are counter-productive and detrimental to
inculcating spirit of enquiry and excellence in the students. The disregard
of statutory compliance would amount to letting loose of innocent and unwary
children. The proceedings of the recent seminar held in Delhi, as published
by the Times of India dated August 4, 1992, would demonstrate the admission by
the teachers that they are not properly trained to cope up with the growing
needs of the society and are unsuited to the duties they have to shoulder in
imparting teaching to the children. The teacher plays pivotal role in
moulding the career, character and moral fibres and aptitude for educational
excellence in impressive young children. Formal education needs proper
equipping of the teachers to meet the challenges of the day to impart lessons
with latest techniques to the students on secular, scientific and rational
outlook. A well-equipped teacher could bring the needed skills and
intellectual capabilities to the students in their pursuits. The teacher is
adorned as Gurudevobhava, next after parents, as he is a principal instrument
to awakening the child to the cultural ethos, intellectual excellence and
discipline. The teachers, therefore, must keep abreast of ever-changing
techniques, the needs of the society and to cope up with the psychological
approach to the aptitudes of the children to perform that pivotal role. In
short teachers need to be endowed and energised with needed potential to serve
the needs of the society. The qualitative training in the training colleges
or schools would inspire and motivate them into action to the benefit of the
students. For equipping such trainee students in a school or a college, all
facilities and equipments are absolutely necessary and institutions bereft
thereof have no place to exist nor entitled to recognition. In that behalf
compliance of the statutory requirements is insisted upon. Slackening the
standard and judicial fiat to control the mode of education and examining
system are detrimental to the efficient management of the education. The
directions to the appellants to disobey the law is subversive of the rule of
law, a breeding ground for corruption and feeding source for indiscipline.
The High Court, therefore, committed manifest error in law, in exercising its
prerogative power conferred under Article 226 of the Constitution, directing
the appellants to permit the students to appear for the examination etc.”
62. The learned Additional Solicitor General also relied upon the
pronouncement in CBSE and another Vs. P.Sunil Kuamr, reported in 1998 (5) SCC
377 where the Apex Court after following the pronouncement in Guru Nanak Dev
University V. Parminder Kr.Bansal reported in 1993 (4 ) SCC 401 as well as
CBSE V. Nikbhil Gulati reported in 1998 (3) SCC 5 deprecated the directions
issued by the High Court of Kerala as wholly erroneous and cannot be sustained
which direction enabled the students to appear for the examination. In this
respect it has been held thus:-
“4. On the admitted position and in view of the law laid down by this Court
referred to above, Mr.Altaf Ahmed, Additional Solicitor General appearing for
the appellants, contended that the impugned direction of the High Court is
wholly erroneous and cannot be sustained. The learned counsel appearing for
the students in different appeals did not dispute the position that the
schools from where their clients have perused their studies are not yet
affiliated to the Central Board of Secondary Education. But they mainly
contended that the students having been permitted to appear at the examination
and they having been successful and certificates having been issued in their
favour, it would work out great injustice, if the impugned directions of the
High Court are set aside at this length of time. In support of this
contention they placed reliance on a recent decision of this Court in the case
of Central Board of Secondary Education v. Nikhil Gulati5. In the aforesaid
case, this Court deprecated the practice followed by the High Court to issue
direction and also observed that such aberrations should not be treated as a
precedent in future but did not interfere with the ultimate direction of the
High Court on the ground that fond hopes have been raised in the minds of the
students and therefore it would be inappropriate to interfere under Article
136 of the Constitution. We are unable to apply the reasoning given in the
aforesaid case, inasmuch as there is no iota of material placed before us to
indicate that the Central Board of Secondary Education, the appellants herein,
either directly or indirectly had held out to the students at any point of
time that the institutions in which they are prosecuting their studies have
been affiliated or are going to be affiliated in the near future. We are
conscious of the fact that our order setting aside the impugned directions of
the High Court would cause injustice to these students. But to permit
students of an unaffiliated institution to appear at the examination conducted
by the Board under orders of the Court and then to compel the Board to issue
certificates in favour of those who have undertaken examination would
tantamount to subversion of law and this Court will not be justified to
sustain the orders issued by the High Court on misplaced sympathy in favour of
the students. In view of the aforesaid premises, we set aside the impugned
judgment of the Division Bench of the Kerala High Court as well as the interim
orders issued by the Single Judge in several petitions out of which the writ
appeals arose and the writ petitions filed by the respondents stand dismissed.
These appeals are allowed but in the circumstances, there will be no order as
to costs.”
63. The Apex Court in State Of Tamil Nadu Vs. St. Joseph Teachers
Training Institute & Another reported in 1991 (3) SCC 87 deprecated the
practice of admitting students by unauthorized educational institutions and
seeking permission for permitting the students to appear at the examination,
which has been looked with disfavour.
64. In St. John’s Teachers Training Institute Vs. State of T.N. &
Others reported in 1993 (3) SCC 595, the Apex Court laid down that the Court
should not issue fiat to allow the students of unrecognized institutions to
appear at the different examinations and expressed its concern in such matters
after reviewing the entire case law on the subject. In the said reported
pronouncement, the Apex Court confirmed the Division Bench judgment of this
Court in P.M. Joseph Vs. State of T.N. & Others reported in 1993 WLR 604.
The Division Bench, while quashing very many permissions granted in favour of
various training institutes as not in conformity with the stipulations, also
made it clear that appearance in the examination or publication of results
will not confer any right on the institution or their students to get any
consequential benefits such as issue of diploma and certificates, etc. This
Court is bound by the said pronouncements and respectfully follow the same.
65. Once again the Supreme Court in Union of India Vs. Era
Educational Trust and another reported in 2000 (5) SCC 57 deprecated the grant
of interim direction which is mandatory in nature and such direction results
in violation of statutory provision of AICTE Act, the ” other body” and such
direction could not have been granted at all after the expert body had
rejected the request for permission.
66. In the light of the above pronouncement this court shall not be
justified in directing the transfer of students from the two institutions
which are unapproved to any other institutions which are approved. In the
present case, but for the grant of affiliation and the allotment of students
under Single Window System, the writ petitioners would not have got themselves
admitted to the two unapproved institutions. Therefore the present case is to
be viewed differently and on its own merits.
67. It is equally true that the two institutions are to be blamed in
that they have concealed the fact that they have not secured approval of the
two expert bodies namely AICTE as well as Pharmacy Council. Without getting
approval the colleges could not have obtained affiliation, nor they could be
allotted candidates under Single Window System. The students who have
undergone the course could not register themselves with the Pharmacy Council.
Management of the two institutions have conveniently concealed these materials
from the eyes of the students. That apart, the omission on the part of the
University is rather extraordinary and it speaks for itself. So also the
commission on the part of the Selection Committee in allotting candidates
under Single Window System to the two institutions, which have not been
approved.
68. AICTE as well as Pharmacy Council also cannot plead ignorance,
nor they could close their eyes. They have got their regional offices and
they could have taken sufficient steps to put the students as well as the
University and the State Government on notice about the non approval of the
two institutions.
69. AICTE as well as Pharmacy Council also cannot sit in Ivory Towers
and after the event could raise such objections. They also owe obligation to
the society and they cannot remain silent spectators, since they are entrusted
with enforcement of the two central enactments. AICTE as well as Pharmacy
Council have organizations throughout India to watch such institutions being
run throughout India and they have all the power to stop such institutions or
they could have come before this court at the earliest opportunity, which
failure on the part of the AICTE as well as Pharmacy Council which costed the
petitioners also deserve to be pointed out. They cannot also plead ignorance
of the two colleges as they are being run for years together and more than two
or three set of students came out of the colleges. After the students coming
out of the colleges it is rather extraordinary for the Pharmacy Council to
plead that they came to know about the institutions only after the students
came out of the college and apply for registration. The University has
communicated the copy of affiliation proceedings to the said two bodies. Yet
they have kept silent.
70. The University while granting affiliation at the first instance
and later on every year has communicated copy of its proceedings to the All
India Council for Technical Education as well as The Pharmacy Council of
India. Yet the said two authorities under the respective Central Enactments
have not chosen to raise a query with the University or raise any objection as
to how the University has granted affiliation when necessary approval has not
been accorded by the said two authorities. Conveniently, the AICTE and
Pharmacy Council have kept silent for reasons best known to them and much
could be said against them for their inaction. The Regional Offices of the
said two bodies also have kept silent. This is also not a no rmal conduct on
the part of the two bodies who are the competent authorities under the
enactments namely, The All India Council For Technical Education Act and The
Pharmacy Act.
71. Even assuming the statement to be correct this court is unable to
appreciate as to how the Pharmacy council kept quiet when the two colleges for
Pharmacy are being opened without the approval and it is rather too late for
them to contend that they are not aware. The council should have taken
appropriate action at the earliest, which course alone would be commensurate
with the status of such All India expert bodies.
72. Taking into consideration of the entire matter, the plight of the
students who have completed the course and the students who are undergoing the
first year, second year, third year or 4th year course, though University
pleads that the students could be transferred to some other approved colleges,
in the light of the Supreme Court decisions, this court will not be justified
in transferring the students to any other approved institutions as these two
institutions where the students have undergone the course are not approved
institutions. However, it should not be lost sight of the fact that the
students have wasted prime part of their life. In the interest of the
innocent students, substantial justice has to be rendered.
73. It was persuasively argued that this court has to necessarily
come to the rescue of the students at least to a certain extent while
following the decisions of the Supreme Court. It is true that the same
University has conducted examinations and some of the students have passed
either the first year or second year or third year and some final year as
well. But that will not help the students in the light of the binding
pronouncements of the Supreme Court referred to above as well as the
pronouncement in Dental Council of India case.
74. In Dental Council of India Vs. Subharti K.K.B. Charitable Trust
& Others reported in 2001 (5) SCC 486, the Apex Court held thus :-
“10. Further while upholding the validity of these Regulations, in
Medical Council of India v. State of Karnataka (SCC at p. 154), this Court
has observed that these Regulations are framed to carry out the purposes of
the Medical Council Act and for various purposes mentioned in Section 33. If
a regulation falls within the purposes referred under Section 33 of the
Medical Council Act, it will have mandatory force. Similarly in State of
Punjab v. Renuka Singla the Court held thus: (SCC p.178, para 8)
“It cannot be disputed that technical education, including medical education,
requires infrastructure to cope with the requirement of giving proper
education to the students, who are admitted. Taking into consideration the
infrastructure, equipment, staff, the limit of the number of admissions is
fixed either by the Medical Council of India or Dental Council of India. The
High Court cannot disturb that balance between the capacity of the institution
and number of admissions, on ‘compassionate ground’.” (emphasis added)
* * * * * *
*
14. He also referred to a three-Judge Bench decision of this Court in
State of Maharashtra v. Vikas Sahebrao Roundale7 wherein it was held that the
students of unrecognized and unauthorized educational institutions could not
have been permitted by the High Court on a writ petition being filed to appear
in the examination and to be accommodated in recognized institutions. The
Court observed: (SCC p.439, para 12 )
“Slackening the standard and judicial fiat to control the mode of education
and examining system are detrimental to the efficient management of the
education.”
15. Similarly in Guru Nanak Dev University v. Parminder Kr. Bansal8
another three-Judge Bench of this Court interfered with the interim order
passed by the High Court to allow students to undergo internship course even
without passing the MBBS examination. It was held that: (SCC p.403, para 7)
“The courts should not embarrass academic authorities by themselves taking
over their functions.” In A.P. Christians Medical Educational Society v.
Govt. of A.P.9 this Court observed that the Court cannot by its fiat direct
the University to disobey the statute to which it owes its existence and the
regulations made by the University itself as that would be destructive of the
rule of law.
16. There cannot be any dispute that normally the court should not
interfere with the functioning of the educational institutions, particularly,
expert bodies like MCI or DCI. Still however, the question is posed that if
such bodies act arbitrarily for some ulterior purpose, whether the court has
the power to set right such arbitrary exercise of power by such authorities.
We find the answer to this question in the affirmative. We also agree with
the learned Solicitor General that educational institutions should not be
permitted to be commercialised for earning money, but at the same time, the
courts can do very little in this field as it is the function of expert
bodies, such as, the Medical Council of India or the Dental Council of India.
However, citizens would lose faith in such institutions if the allegations
made in this appeal are repeatedly made with regard to the inspection reports
and granting of approval by the Central Government. We leave this question
for the Central Government to deal with appropriately as it is the function of
the authorities concerned to plug the loopholes and see that in such matters
nothing hanky-panky happens.ö
75. To a suggestion from the court, the counsel for the Pharmacy
Council represented that the Pharmacy Council will not consider any relaxation
or variation with respect to transfer policy as such transfer is impermissible
from an unapproved college to any other approve college.
76. This contention also cannot be ignored even though the students
have lost valuable portion of their life and money. The two institutions also
cannot be allowed to go scot free.
77. Taking into consideration of the entire facts, the extraordinary
circumstances created by all Respondents and to render substantial justice to
students who spent considerable number of years in Colleges which are
unapproved in the light of conduct of all the respondents, while following the
law laid down by the Supreme Court, including the pronouncement reported in
2000 (7) SCC 746 Maharishi Dayanand University Vs. M.L.R.Saraswathi College
of Education to render substantial justice, this court issue the following
directions :-
“A) This Court directs (1) Pearl Peace Medical Mission College &
Pharmacy, Pettai, Tirunelveli, (2) Fathima College of Pharmacy, Kadayanallur,
(3) The Secretary, Selection Committee, 162, Periyar EVR High Road, Kilpauk,
Chennai, (4) Director of Medical Education, 162, Periyar EVR High Road,
Kilpauk, Chennai, shall not admit students in the said colleges, namely,
Fathima College of Pharmacy and Pearl Peace Medical Mission College & Pharmacy
any further till the said two colleges secure the approval or permission of
AICTE and Pharmacy Council of India and till Dr. M.G.R. Medical University
after inspection grants fresh affiliation for the future ;
B) The affiliation already granted in favour of the said Fathima
College of Pharmacy and Pearl Peace Medical Mission College and Pharmacy by
Dr. M.G.R. Medical University is declared null and void and the affiliation
already granted by Dr. M.G.R. Medical University shall not be relied upon by
the said two institutions for any purpose whatsoever;
C) In respect of the said two colleges, namely, Fathima College of
Pharmacy and Pearl Peace Medical Mission College and Pharmacy, there will be
an order of injunction against the colleges Fathima College of Pharmacy and
Pearl Peace Medical Mission College and Pharmacy restraining them from
admitting students for B.Pharmacy course from conducting B.Pharm course till
the respective institutions is approved by AICTE and Pharmacy Council of India
and fresh affiliation is granted by Dr. M.G.R. Medical University ;
D) The Director of Medical Education shall see that the above
directions are complied forthwith by the two colleges, namely, Fathima College
of Pharmacy and Pearl Peace Medical Mission College and Pharmacy and the
Director of Medical Education shall be the authority to implement the said
directions ;
E) The students who have been so far admitted to Fathima College of
Pharmacy and Pearl Peace Medical Mission College and Pharmacy either by the
colleges themselves under the management quota or any other quota and all the
students admitted under the single window system by the selection committee
and allotted to the colleges shall be admitted to other approved and
affiliated colleges in the State as may be allocated by the Registrar, Dr.
M.G.R. Medical University to first year of studies in respect of students who
have completed first year and undergoing 2nd year course in these two colleges
and the students who have completed 3rd and 4th year in the 3rd year of
studies in these colleges and they shall take up the examinations from the
years for which they have been admitted and further years as well and only
after completing the course in the colleges now ordered to be admitted they
shall be deemed to have been admitted validly to B.Pharm course and on
successful completion and passing the examination conducted by Dr. M.G.R.
Medical University they shall be registered by the Pharmacy Council of India
as if they have undergone the course from inception in an approved institution
;
F) The admission of the petitioners and others identically placed
shall be completed within four weeks from today. The University may also
consider granting exemption and condonation in respect of attendance wherever
required for this year as special circumstance ;
G) Those who have already completed the course and left the said two
colleges, namely, Fathima College of Pharmacy and Pearl Peace Medical Mission
College and Pharmacy, if they apply, they shall also be admitted and allotted
to private colleges in the State, but they shall undergo one year course, take
up the University examination as if they have studied three years with the
colleges to which they are now allotted by the University and take up the
final year examination once again and on their securing a degree in Pharmacy,
they shall be deemed to have validly undergone the course in an approved
institution and the Pharmacy council shall register those graduates ;
H) It is made clear that students who are admitted as per the
directions issued by this Court by the Registrar, Dr. M.G.R. Medical
University shall be deemed to have been admitted validly in private
institutions and they shall be deemed to have undergone the course for all
purposes including for registration with the Pharmacy Council of India on
their passing all the examinations conducted leading to B.Pharm course by
Dr.M.G.R. Medical University ;
I) The Registrar, Dr. M.G.R. Medical University in consultation with
the selection committee shall forthwith issue orders re-allotting the
petitioners in the above writ petitions and other students who are identically
placed for being admitted into other colleges, which have been established
validly and affiliated to the University ;
J) The two institutions, namely, Fathima College of Pharmacy and Pearl
Peace Medical Mission College and Pharmacy, the management shall refund all
amounts so far collected by them from the respective students and the same
shall be remitted by the institutions within four months to the Registrar, Dr.
M.G.R. Medical University ;
K) Each of the writ petitioner and other students who is undergoing or
undergone studies in the above two institutions shall submit a statement of
account with respect to the amounts remitted by them with supporting vouchers
towards tution fee or any other fee or any other amount under whatever head to
the Registrar, Dr. M.G.R. Medical University within six weeks from today.
On the students furnishing the statement of accounts, the Registrar, Dr.
M.G.R. Medical University shall call upon the two institutions, namely,
Fathima College of Pharmacy and Pearl Peace Medical Mission College and
Pharmacy to remit the amount to a special account to be opened by the
Registrar, Dr. M.G.R. Medical University and in respect of such amounts so
remitted shall be utilized for payment of fees to the colleges to which the
students are allotted afresh ;
L) The students who are directed to be allotted and admitted to other
Private or Government colleges of Pharmacy in the State shall be liable to pay
fees as if they have been admitted on merit quota ( Government quota) and not
under management quota ;
M) For the petitioners and other students who are identically placed,
Dr. M.G.R. Medical University shall not collect fees for those years of
examination which the petitioners and others identically placed have already
remitted fees and appeared irrespective of the results of such appearance in
the examinations ;
N) The selection committee and the State Government are directed to
delist the said two colleges, namely, Fathima College of Pharmacy and Pearl
Peace Medical Mission College and Pharmacy from the list of institutions for
which admission to B.Pharm is made under single window system ;
O) The AICTE and Pharmacy Council of India, if the said two
institutions apply afresh by complying with the requirements stipulated by the
respective regulations, they may consider the application on merits and
according to law by following the procedure prescribed in this behalf and the
said authorities shall give a disposal according to law for the future only
and on their granting permission/approval, the University may consider grant
of fresh affiliation subject to the colleges complying with the requirements
prescribed by the University, such as infrastructure, staff and other
requirements ;
P) The AICTE and the Pharmacy Council of India or their respective
local council shall appoint a special officer from their council to inspect
all the institutions annually and satisfy themselves as to whether they have
valid approval or permission either in the past or in the future or for each
year of study or block period as the case may be and in case the Pharmacy
colleges do not either get renewal or approval or permission as the case may
be, shall forthwith intimate Dr.M.G.R. Medical University as well as the
Secretary, Selection Committee about the failure of those colleges to get
approval or permission or renewal as the case may be and also give wide
publicity in respect of such colleges who fail to secure permission or
approval of these bodies;
Q) Dr. M.G.R. Medical University shall convene a meeting calling
upon the representative of the Pharmacy Council of India and the AICTE for a
joint verification of the institutions in the University and the said
representatives of all the three bodies shall meet once in a year without fail
and exchange the particulars of the respective Pharmacy colleges and such
meeting shall be completed before the 30th of May of each year. This
direction is issued as there is no coordination between the three bodies.”
78. This court observe with heavy heart that each of the student and
their parents have wasted considerable number of years of their life in those
institutions in spending huge amount and it is made clear that the students
may initiate appropriate action against the two institution for damages or
compensation as the case may be by separate action before a competent court.
79. In the result, the writ petitions are ordered as above.
Consequently connected Miscellaneous Petitions are closed. The parties shall
bear their respective costs.
08.11.2002
Internet : Yes
Index : Yes
GKV/GLN
Copy to :-
1. The Secretary,
Government of Tamil Nadu
Health and Family Welfare Dept.,
Chennai-9
2. The Director
Directorate of Medical Education
162, Periyar EVR High Road,
Kilpauk, Chennai-10
3. The Secretary,
Selection Committee
162, Periyar EVR High Road,
Kilpauk, Chennai-10
4. The Registrar,
The Tamil Nadu Dr.M.G.R.Medical University
Guindy, Chennai.
5. The Director,
All India Council of Technical Education
Block NO.5, Bharathi Bhavan
Nungambakkam, Chennai.
6. The Registrar
Pharmacy Council of India
Block E. First Floor,
Bharathiar Complex,
100 feet inner ring road,
Vadapalani, Chennai-26