AI Structured Summary
Not yet generated for this judgment
Judgment
N. Nagaresh, J
In all these writ petitions, the petitioners are Institutions/Trusts running Pharmacy Colleges, imparting B.Pharm and D.Pharm Courses. The issue involved in these writ petitions is as regards non-issuance of No Objection Certificate (NOC) by the State of Kerala for the D.Pharm Courses of the petitioners and consequential refusal by the Director of Medical Education, the examining body, to affiliate the D.Pharm Courses of the petitioners, which in turn ousted the Colleges from the Centralised Allotment Process (CAP) conducted by the LBS Centre for Science and Technology on behalf of the Government of Kerala and the Director of Medical Education (DME).
The academic years in issue are 2019-'20 and 2020-'21. When these writ petitions came up for admission, this Court passed interim orders directing that the petitioners-Colleges be included in the Centralised Allotment Process and to register the students in the petitioners-Colleges for the D.Pharm Courses for the academic years provisionally and pending disposal of the writ petitions.
The All India Council for Technical Education (AICTE) has granted approval for the D.Pharm Courses conducted by the petitioners for the relevant academic years. The Pharmacy Council of India has also granted approval. The approval is granted after due inspection of the institutions and after ascertaining that the petitioners-Colleges have requisite infrastructure, faculty and other mandatory requirements as laid down by the PCI. However, the DME did not grant affiliation to the D.Pharm Courses and insisted for an NOC from the State Government as a condition for affiliation.
The Board of D.Pharm Examinations under the DME has addressed a Circular No.B7/6160/2021/DME dated 30.09.2021 (Ext.P8 in WPC No.22673/2021) to the Principals of the Medical & Pharmacy Colleges requiring to submit the following documents for registration of D.Pharm students for the 2020 Admission:
"1. List of whole candidates concerned in alphabetic order.
SSLC & Plus Two certificates (Both Original) of whole candidates, neatly filed in alphabetic order.
Fee chalan receipts for the whole candidates.
Copy of consent of affiliation from the Examining authority for the D.Pharm course in your institution.
Copy of approval letter from PCI for the conduct of D.Pharm course in your institution for the year 2020-2021.
Copy of NOC from the Government of Kerala for starting the D.Pharm course in your institution."
The petitioners are aggrieved by the insistence on NOC from the Government of Kerala for starting D.Pharm Course.
The petitioners contend that insistence on NOC from State Government is uncalled for. A similar demand for NOC raised by the Kerala University of Health Sciences for affiliation of B.Pharm Course was found to be untenable by this Court in the judgment in WP(C) No.17685/2018 (Ext.P3 in WP(C) No.12297/2020). The DME has to conduct inspection of the Colleges and complete the process of affiliation of the D.Pharm Course. For the said purpose, an NOC from the State Government is not a legal requirement, contended the petitioners.
The State of Kerala adopted their statement filed in WP(C) No.9264/2020 to defend the writ petitions. According to the State of Kerala, approval by Pharmacy Council of India (PCI) is only a permission granted to the petitioners to approach the State Board of Pharmacy Education, which is the affiliating and examining body. In Parshwanath Charitable Trust and others v. AICTE and others [(2013) 3 SCC 385], the Apex Court had fixed the schedule under which the Central Regulatory Authority and the affiliating body shall grant letter of approval/affiliation for technical courses which include Pharmacy also. As per the said schedule, affiliation is to be granted to an institution by 15th of May and consequent schedule of admission including the commencement of classes is also prescribed. Admission of the students made by the petitioners without obtaining affiliation, is irregular.
In the statement filed in WP(C) No.18105/2019, it has been stated that the Government feels that there is a proliferation of institutions imparting B.Pharm and D.Pharm Courses in the State. This has resulted in unemployment of Degree / Diploma holders in Pharmacy. The DME has reported to the Government that there is no need of new institutions imparting courses in Pharmacy at present and the Pharmacy education sector is saturated with institutions.
I have heard the learned counsel for the petitioners, the learned Government Pleader representing the State of Kerala and the DME and the learned Standing Counsel appearing for the LBS Centre for Science and Technology.
The issue arising for consideration is whether the affiliating body for D.Pharm Courses in the State, namely the DME, can refuse to affiliate the D.Pharm Courses offered to the petitioners for the reason that the Government has not issued NOC and whether in the absence of affiliation, the petitioners-Colleges can be kept out of the Common Allotment Process conducted by the LBS Centre.
As far as B.Pharm Degree Courses in Kerala are concerned, the Kerala University of Health Sciences is the affiliating and examining body whereas for the D.Pharm Courses, the DME is the affiliating and examining body. The question whether prior NOC from the State Government is necessary for the Pharmacy Council of India to give approval to B.Pharm Courses conducted in the State, came up for consideration in WP(C) No.15525/2018 and connected cases. In the said cases, the Government Pleader submitted that to stop mushrooming of Colleges, the Government has taken a policy decision not to permit new courses and that no admission can be made without the affiliation of the examining body.
The Division Bench of this Court which heard the said cases noted that no rule or regulation which mandates the respective Colleges to obtain affiliation and procedure to be adopted to obtain affiliation, was brought to the notice of the Court. But, the Colleges were requesting NOC of the Government and the Government has also issued permission to 20 Colleges. The Division Bench of this Court found that since there is no mechanism or procedure in place for grant of affiliation, the Government cannot contend that the Colleges should have obtained affiliation prior to making allotment process.
As regards the defence of the DME and the Government that the policy is to prevent mushrooming of Colleges, the Division Bench has held that there is no such policy and even if there is such a policy, the State cannot have a blanket ban on establishment of new Colleges/courses unless it is regulated by a law as envisaged by Article 13(3)(a) of the Constitution of India and amounts to reasonable restriction within the framework of Article 19(6). Accordingly, the Division Bench quashed the orders passed by the respondents denying NOC. It is therefore clear that in the absence of a statutory framework, the State cannot deny NOC for affiliation to the petitioners-Colleges on the basis of the alleged policy decision. This Court has also held that the Government cannot contend that the Colleges should have obtained affiliation prior to making allotment process.
In WP(C) No.15525/2018 and connected cases, this Court considered the question whether prior approval of the Pharmacy Council of India is required to offer a B.Pharm Program and whether grant of such approval can depend upon NOC to be issued by the Government. The learned Single Judge held in the judgment that prior approval of the Pharmacy Council is required to offer B.Pharm Program and the grant of approval cannot be dependent on NOC to be issued by the Government.
In view of the law laid down by this Court in the judgment in WP(C) No.14618/2020 and connected cases and in WP(C) No.15525/2018 and connected cases, it emerges that the petitioners can offer D.Pharm Courses with the prior approval of the PCI. The State cannot have a blanket ban on establishment of new Pharmacy Colleges/courses unless it is regulated by law. As long as there is no mechanism or procedure in place for grant of affiliation to Pharmacy courses, the State cannot contend that the petitioners-Colleges should have obtained affiliation prior to making allotment process.
The learned Government Pleader contended that though the PCI gives its approval to the D.Pharm courses after due verification, it may happen that the Colleges run short of faculties and may lag in other essential infrastructural and other requirements, in the course of time and the Government has power to inspect the petitioners-Colleges to ensure that the Colleges are maintaining the standards prescribed. The respondents indeed have such powers. But, approval cannot be denied to the petitioners-Colleges/Courses for any reason which does not have the support of any law or rules or regulations statutorily made.
In the circumstances, the writ petitions are disposed of directing the State of Kerala and the Director of Medical Education to grant NOC and affiliation to the D.Pharm Courses of the petitioners for the academic years 2019-'20 and 2020-'21. It is made clear that the State of Kerala will be entitled to cause inspection of the petitioners-Colleges for the purpose of NOC/affiliation to the D.Pharm Courses of the petitioners for the ensuing academic years and if any deficiencies are noted, to bring the deficiencies to the notice of the petitioners and grant reasonable time to the petitioners to make good the deficiencies, for the purpose of approval and affiliation in the ensuing academic years.