IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08/11/2005 CORAM THE HON'BLE MR.JUSTICE C.NAGAPPAN W.P.No.29482 of 2005 and W.P.No. 30617 of 2005 and WPMP.Nos.32281, 32282 and 33510 of 2005 W.P.No.29482/2005 Sankaralingam Bhuvaneswari College of Pharmacy, rep. by its Administrative Officer, C.Srinivasan No.3/77-C, Anaikuttam Road, Anaikuttam, Sivakasi-626 130 Virudhunagar District. .. Petitioner -Vs- The Registrar, The Tamil Nadu Dr.M.G.R.Medical University, 69, Anna Salai, Guindy, Chennai-600 032. .. Respondent
W.P.No.30617/2005
Annai Velankanni’s Pharmacy College,
81, VGP Salai, Saidapet,
Chennai-600 015,
rep. by its Chairman/Secretary
S.Devaraj .. Petitioner
-Vs-
1.The Government of Tamil Nadu,
rep. by its Secretary,
Health and Family Welfare Department,
Fort St.George,
Chennai-600 009.
2.The Tamil Nadu Dr.M.G.R.Medical University, 69, Anna Salai, Guindy, Chennai-600 032, rep. by its Registrar .. Respondents
W.P.No.29482/2005: Writ Petition filed under Article 226 of the
Constitution of India praying for issuance of writ of certiorarified mandamus
calling for the records in respect of the impugned order passed by the
respondent in letter No.42713/Affln.I(1)/02 dated 30.8.200 5, quash the same
and direct the respondent University to process the application of the
petitioner dated 15.2.2005 and grant affiliation to the petitioner College for
an additional intake of 10 seats i.e. from 50 to 60 in B.Pharm degree course
from the academic year 2005-2006.
W.P.No.30617/2005: Writ Petition filed under Article 226 of the
Constitution of India praying for issuance of writ of certiorarified mandamus
calling for the records relating to the order of the second respondent issued
in Lr.No.42713/Affln.I(1)/02, dated 30.8.2005, quash the same and consequently
direct the second respondent to grant affiliation to the petitioner Pharmacy
College for the increase of intake from 40 to 60 students in B.Pharmacy course
from 2005-2006 forthwith.
!For petitioner in
W.P.No.29482/2005 : Mr.R.Suresh Kumar
^For respondent in
W.P.No.29482/2005 : Mr.AR.L.Sundaresan
For petitioner in
W.P.No.30617/2005 : Mr.N.Paul Vasanthakumar
For 1st respondent in
W.P.No.30617/2005 : Mr.V.Karthikeyan
Addl. Govt. Pleader.
For 2nd respondent in
W.P.No.30617/2005 : Mr.AR.L.Sundaresan
Mr.N.Muralikumaran, ACGSC for AICTE.
:COMMON ORDER
The petitioners in both the writ petitions are Pharmacy Colleges and they have
sought for issuance of writ of certiorarified mandamus to quash individual
orders passed by the respondent Dr.M.G.R.Medical University rejecting their
request for increase of seats in B. Pharmacy Degree Course on the ground that
prior mandatory permission of the Tamil Nadu Government for increase of seats
was not obtained and to direct the University to grant affiliation for the
increase of seats as sought for.
2. The point for consideration in both the writ petitions is one and the same
and hence they were heard together and a Common Order is passed.
3. The petitioner College in W.P.No.29482/2005 was established in the year
1992-1993 and the All India Council for Technical Education ( AICTE) as well
as Pharmacy Council of India gave approval as well as permission to conduct
B.Pharm Degree Course with annual intake of 50 students. The petitioner
applied to both the Authorities seeking for increase of seats and AICTE by
their order dated 29.8.1997 permitted an intake of 60 students and thereafter
the Pharmacy Council of India by their order dated 27.5.2003 has also raised
the seats to 60 from the academic year 2003-2004. The petitioner made an
application before the respondent University on 15.2.2005 seeking for grant of
affiliation for the additional intake of 10 seats from the academic year
2005-2006 and that has been rejected by the impugned order dated 30.8.2005
stating that the proposal for increase of seats cannot be entertained for want
of prior permission of the State Government which is mandatory.
4. The petitioner College in W.P.No.30617/2005 was established in the year
1995 and granted permission for an annual intake of 40 students and the
petitioner applied for increase of intake of students from 40 to 60 and the
AICTE by their letter dated 16.6.2005 granted that approval for an intake of
60 students and the Pharmacy Council of India also in order dated 29.6.2005
granted the approval for an intake of 60 students. The petitioner submitted
an application to the respondent University for grant of affiliation for 60
students and that has been rejected by the impugned order dated 30.8.2005
stating that the proposal for increase of seats cannot be entertained for want
of prior mandatory permission of the State Government.
5. The petitioners in both the Writ Petitions have challenged the impugned
orders on the ground that prior permission from the State Government for
increase of seats is not required since the petitioners have obtained approval
from AICTE and Pharmacy Council of India and insisting of such a demand is
illegal as held by the Supreme Court and on that ground the impugned orders
are liable to be quashed.
6. The respondent University has filed independent counter affidavits in both
the writ petitions stating that Proviso to Section 5(5) of the Tamil Nadu
Dr.M.G.R.Medical University, Chennai, Act, 19 87 states that no college shall
be affiliated unless the permission of the State Government to establish such
college has been obtained and Section 42 of the Act empowers the Governing
Council of the University to frame statutes and the amended provision in the
statute of the University was assented to by the Chancellor and came into
force with effect from 24.2.2004 and it requires the prior approval of the
State Government for increase of intake of students in the colleges run by the
petitioners. It is further stated that the notification dated 6.1.2005, said
to have been issued by the AICTE, has to be laid before both the Houses of
Parliament and be published in the Official Gazette and only then, the same
would be enforceable in terms of the All India Council for Technical Education
Act, 1987 and the petitioners have to prove the same and the order of AICTE
permitting the increase of seats has been passed unilaterally and the same is
not enforceable in law.
7. Mr.Paul Vasanthakumar, learned counsel appearing for the petitioner in
W.P.No.30617 of 2005 and Mr.Suresh Kumar, learned counsel appearing for the
petitioner in W.P.No.29482 of 2005 contended that the grant of approval having
been vested with the All India Council for Technical Education and the
Pharmacy Council of India, the respondent University has no jurisdiction to
insist upon the production of prior permission of the State Government for
increase of intake of students and such a demand of prior permission was
already held illegal by the Supreme Court in the decision in Thirumuruga
Kirupananda Variyar Thavathiru Sundara Swamigal Medical Educational and
Charitable Trust v. State of Tamil Nadu (AIR 1996 SC 2384) and hence the
impugned orders are liable to be set aside and the respondent University has
to be directed to consider the applications of the petitioners and grant
affiliation for increase of intake of students as sought for.
8. Proviso to Section 5(5) of the Tamil Nadu Dr.M.G.R. Medical University,
Chennai, Act, 1987 requiring prior permission of the State Government for
establishing a college was held to be repugnant to Section 10-A of the Indian
Medical Council Act, 1956 by the Apex Court in the decision referred to above
and it has been declared that after the grant of permission by the Central
Government, a further permission of the State Government under the proviso to
Section 5(5) of the Tamil Nadu Dr.M.G.R. Medical University, Chennai, Act,
1987 would not be required for the purpose of affiliation. Moreover, it is
now stated that the All India Council for Technical Education Grant of
approval for starting new technical institutions, introduction of courses or
programmes and variation of intake capacity of seats for the courses or
programmes and continuation of approval for the existing technical
institutions Regulations, 2004 has come into force on and from 29.1.2005 and
by virtue of the same, the requirement of prior permission from the State
Government, no longer exists.
9. Mr.Sundaresan, learned counsel appearing for Dr.M.G.R. Medical University
fairly conceded that prior permission of the State Government under the
proviso to Section 5(5) of the Tamil Nadu Dr.M. G.R. Medical University,
Chennai, Act, 1987 may not be necessary for the purpose of obtaining
affiliation in view of the law laid down by the Apex Court, but contended that
the Regulations mentioned in the notification dated 6.1.2005 to become
enforceable, have to be published in the Official Gazette and also should be
laid before both the Houses of Parliament and the petitioners have to
establish the same.
10. Though the All India Council for Technical Education is not a party in
the writ petitions, notice was issued and Mr.Muralikumaran, Additional Central
Government Standing Counsel, appeared for them and the Regional Director of
the AICTE, situated at Chennai, filed affidavit stating that the Notification,
dated 6.1.2005, was gazetted on 29 .1.2005 in the Gazette of India Part 3
Section 4 in Notification No. F.37-3/Legal/2004 and the Regulations were
placed before the Lok Sabha on 3.5.2005 and Rajya Sabha on 9.5.2005 and the
regulations are in force. Hence, there is no doubt about the legal position.
11. All India Council for Technical Education has granted approval for the
increase of intake of students by orders dated 21.6.2005 and 16 .6.2005 to the
petitioners and both the orders of approval have been issued under the
Regulations referred above. In such circumstances, the impugned orders
stating that the proposal for increase of seats cannot be entertained for want
of prior permiss ion of the State Government and it is mandatory for the grant
of provisional affiliation, are unsustainable in law and liable to be quashed.
12. Accordingly, both the Writ Petitions are allowed and the impugned orders
are set aside and the respondent Dr.M.G.R.Medical University is directed to
consider the applications of the petitioners for the increase of seats in
B.Pharmacy Degree Course and pass orders within a period of one month from the
date of receipt of copy of this Order. No costs. Connected WPMP.Nos.32281,
32282 and 33510 of 2005 are closed.
Index: yes.
Internet: yes.
vks
Copy to:
1. The Secretary to Government
of Tamil Nadu,
Health and Family Welfare Department,
Fort St.George,
Chennai-600 009.
2. The Registrar,
The Tamil Nadu Dr.M.G.R.Medical
University,
69, Anna Salai, Guindy,
Chennai-600 032.