Bombay High Court
Avinash Raosaheb Pawar And Others vs The State Of Maharashtra And ... on 4 July, 2017
Bench: Anoop V. Mohta
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 10027 OF 2016
Shri Bhairavnath Nisarga Mandal's
College of Pharmacy (D. Pharm.)
At Post Hatta, Tq. Vasmat,
Dist. Hingoli,
Through its Principal .. Petitioner
Versus
01. The State of Maharashtra,
Through its Secretary,
Higher and Technical Education
and Employment Department,
Government of Maharashtra,
Mantralaya, Mumbai 400 032.
02. The Director of Technical Education,
Government of Maharashtra,
3, Mahapalika Marg, Mumbai 400 001.
03. All India Council for Technical Education,
07th Floor, Chandralok Building,
Janpath, NEW DELHI - 110 001,
Through its Principal Secretary.
04. The Pharmacy Council of India,
Through its Registrar-Cum-Secretary,
Combined Council Building,
Kotla Road, Ali Yawarjung Marg,
NEW DELHI - 110 002.
05. The Maharashtra State Board of Technical
Education, Kherwadi, Bandra (East),
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Mumbai - 400 051,
Through its Secretary. .. Respondents
Shri D. S. Bagul, Advocate for the Petitioner.
Shri V. S. Badakh, A.G.P. for Respondent Nos. 1 and 2.
Shri S. V. Adwant, Advocate for the Respondent No. 3.
Shri S. B. Deshpande, Standing Counsel for the respondent No. 4.
Shri S. S. Jadhavar, Advocate for the Respondent No. 5.
WITH
WRIT PETITION NO. 2631 OF 2017
1. Ms. Gayatri Tukaram Kakde,
Age : 21 Years, Occu. : Occ.
R/o T. V. Venter Hudco,
Swami Vivekanand Nagar,
Aurangabad.
2. Pandhari Dnyaneshwar Raut,
Age : 22 Years, Occu. : Student,
R/o Jai Bhawani Nagar,
Galli No. 14, Right Side Building No. 3,
Mukundwadi Railway Station,
Aurangabad.
3. Krushna Sukhdev Adhane,
Age : 20 Years Occu. : Student,
R/o N/12, 28/6, Bharat Nagar,
Aurangabad.
4. Dnyaneshwar Kakasaheb Bhalekar,
Age : 21 Years, Occu. : Student,
R/o Tongaon, Post Kumbephal,
Tq. and district Aurangabad.
5. Shiva Trust's
Rajesh Bhaiyya Tope College of Pharmacy
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At Nipani Bhalgaon, Beed By pass
Road Aurangabad, District Aurangabad
Through its Principal
Mr. Uday Uttamrao Dunakhe
Age : 42 Years, Occu. : Service,
R/o A-4, Hari Sai Park,
Behind Chate School,
Satara Parisar, Aurangabad,
District Aurangabad. .. Petitioners
Versus
1. The Pharmacy Council of India,
Combined Council's Building,
Kotla Road, Temple lane, near I.T.O.,
New Delhi.
Through its Registrar.
2. The Maharashtra State Pharmacy Council
E.S.I.S. Hospital compound,
Lal Bahadur Shastri Marg,
Mulund (W), Mumbai
Through its Registrar.
3. All India Council for Technical Education,
07th Floor, Chandralok Building,
Janpath, New Delhi,
Through its Member Secretary. .. Respondents
Shri V. D. Hon, Senior Counsel i/by Shri Ashwin V. Hon,
Advocate for Petitioners.
Shri S. B. Deshpande, Standing Counsel for the respondent No. 1.
Shri V. S. Badakh, A.G.P. for the Respondent No. 2.
Shri S. V. Adwant, Advocate for the Respondent No. 3.
WITH
WRIT PETITION NO. 2642 OF 2017
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1. Pritesh Balasaheb Kale,
Age : 21 Years, Occu. : Education,
R/o At Post Imampur, Tq. Newasa,
Dist.- Ahmednagar.
2. Kum. Yogita Ashok Waghchoure,
Age : 21 Years, Occu. : Education,
R/o At post-Pachegaon, Tq. - Newasa,
Dist.- Ahmednagar.
3. Akshta Popatrao Jagtap,
Age - 21 Years Occu. : Education,
R/o At post - Nimbhari,
Tq. Newasa, Dist.- Ahmednagar.
4. Sudarshan Ashok Mule,
Age - 21 Years, Occu. : Education,
R/o - At Post - Ashvi (Bk),
Tq. Sangamner, Dist. Ahmednagar.
5. Shiva Trust's
Pratibhatai Pawar College of Pharmacy
At Wadala-Mahadev Tq.-Shrirampur,
Dist.-Ahmednagar,
Through its Administrative Officer,
Dr. Shantanu Rangnath Pawar,
Age : 30 Years, Occu. : Service,
R/o Plot No. 20, Indraprastha Housing
Society, Garkheda Area, Aurangabad,
District Aurangabad. .. Petitioners
Versus
1. The Pharmacy Council of India,
Combined Council's Building,
Kotla Road, Temple lane, near I.T.O.,
New Delhi.
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Through its Registrar.
2. The Maharashtra State Pharmacy Council
E.S.I.S. Hospital compound,
Lal Bahadur Shastri Marg,
Mulund (W), Mumbai
Through its Registrar.
3. All India Council for Technical Education,
07th Floor, Chandralok Building,
Janpath, New Delhi,
Through its Member Secretary. .. Respondents
Shri V. D. Hon, Senior Counsel i/by Shri Ashwin V. Hon,
Advocate for Petitioners.
Shri S. B. Deshpande, Standing Counsel for the respondent No. 1.
Shri V. S. Badakh, A.G.P. for the Respondent No. 2.
Shri S. V. Adwant, Advocate for the Respondent No. 3.
WITH
WRIT PETITION NO. 2999 OF 2017
1. Avinash S/o Raosaheb Pawar,
Age : 24 Years, Occu. : Nil,
R/o Dahigaon, Tal. Jafrabad,
District Jalna.
2. Nitin S/o Sundarrao Kulkarni,
Age : 24 Years, Occu. : Nil,
R/o Ambhora (J), Tal. Mantha,
District Jalna.
3. Anita D/o Kamlaji Jadhav,
Age - 23 Years Occu. : Nil,
R/o Devulgaon Raja,
Tq. Devulgaon Raja, Dist. Jalna.
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4. Dnyaneshwar S/o Punjaram Zore,
Age 32 Years, Occu. : Nil,
R/o - Paradgaon, Tal, Ghansavangi,
District Jalna.
5. Shriram S/o Dattarao Gore,
Age 23 Years, Occu. : Nil,
R/o - Hisoda, Tal, Bhokardan,
District Jalna.
6. Kishor S/o Uttamrao Jadhav,
Age 28 Years, Occu. : Nil,
R/o - Jalna, Tal. & Dist. Jalna.
7. Sabir Khan Samsherkhan Pathan,
Age 24 Years, Occu. : Nil,
R/o - Sevali, Tal. & Dist. Jalna.
8. Nadim Shaikh Zainullawaddin Shaikh,
Age 24 Years, Occu. : Nil,
R/o Ambad, Tal. Ambad,
District Jalna. .. Petitioners
Versus
1. The State of Maharashtra,
Through its Secretary,
Higher and Technical Education
Department, Mantralaya, Mumbai.
2. Pharmacy Council of India,
Combined Councils Building,
Kotla Road, Aicon-E, Galib Marg,
New Delhi.
3. Maharashtra State Pharmacy Council
22, Veena Nagar, Mulund West,
Mumbai, Maharashtra.
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4. Maharashtra State Board of Technical
Education, 49, Ali Yawar Jang Marg,
Sadguru Colony, Bandra (East),
Mumbai.
5. The Director of Technical Education,
Maharashtra State, 3
Mahapalika Marg, Post Box No. 1967,
Mumbai.
6. Regional Board of Technical Education
(RBTE) Osmanpura, Aurangabad,
District Aurangabad.
7. Shree Pharmacy College, Jalna,
Samata Bhavan, Dhorga Road,
Jalna, Tal. & District Jalna. .. Respondents
Shri Vishal A. Bagal, Advocate for Petitioners.
Shri V. S. Badakh, A.G.P. for Respondent Nos. 1 and 5.
Shri S. B. Deshpande, Standing Counsel for the respondent No. 2.
Shri S. S. Jadhavar, Advocate for the Respondent No. 6.
Shri Y. B. Bolkar, Advocate for the Respondent No. 7.
CORAM : ANOOP V. MOHTA AND
SUNIL K. KOTWAL, JJ.
DATE : 04 TH JULY, 2017.
ORAL JUDGMENT (Per Anoop V. Mohta, J.) :-
. Rule. Rule made returnable forthwith. Heard finally by
consent of learned counsel appearing for parties.
2. As common issues are raised in all these petitions and
respondents are also common, so also the basic provisions of law,
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therefore, this common judgment.
3. Some of petitioners are educational institutions who have
been imparting technical education based upon requisite
permission/approval obtained from All India Council of Technical
Education (for short "AICTE").
4. The term "Technical Education" includes pharmacy,
architecture and all other technical courses. Some of petitioners
are students who have based upon then advertisement applied
and accordingly got the admission in the institutions for
pharmacy course. They have prosecuted the course accordingly,
subject to and in pursuance to various orders passed by this
Court in respective petitions, also in view of pending issue about
supremacy of AICTE and/or PCI and/or Architecture Council.
Admittedly, this controversy/issue is still pending in the Supreme
Court as read and referred by this Court in Writ Petition No.
6259 of 2017 (Shri Vile Parle Kelvani Mandal Vs. The State
of Maharashtra and others). Relevant portion is reproduced
as under :
The judgments cited by the learned counsel
appearing for the petitioner here directly
deal with the importance / need to be given
to the supremacy of the approval and
sanction of AICTE over the other
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authorities. We have taken note of the same
and granted the relief to the other
petitioners, but again also on the
foundation of giving importance to AICTE
approval and sanction first.
5. In view of above background, we have to consider the
respective prayers made by petitioners/students seeking
mandamus/order against respondent/PCI to issue necessary
approval for registration as required U/Sec. 12 of the Pharmacy
Act (for short 'Act') for all the students who have completed their
diploma courses/ some have obtained in the year 2006-2007
onwards. The consequential prayers are made against the
respondent/Maharashtra State Pharmacy Council to grant
necessary approval for registration to such students irrespective
pendency of the issue of intake capacity 60 and/or 120 and/or 180
as the case may be. The same was on the foundation of AICTE
approval/permission along with other necessary permissions of
the other authorities.
6. We have already noted in Writ Petition No. 6259 of 2017
(Shri Vile Parle Kelvani Mandal Vs. The State of
Maharashtra and others) (supra), and similar other matters.
the observations of the Supreme Court and the
approval/permissions granted by the AICTE. This Court has
also passed various orders granting permission to the
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educational institutions/colleges to admit students based upon
approval granted by the AICTE referring to intake capacity of
the students. All the concerned authorities and students have
acted accordingly.
7. Petitioners are waiting for registration from PCI inspite of
repeated communications and orders passed by the Court.
Respondent/PCI is refusing such registration. We see, there is no
reason that such students who have completed the course/studied
as recorded above and obtained concerned diploma should not be
permitted to proceed further in life.
8. The power of pharmacy council to grant registration and
refuse registration is not in dispute. At the same stroke
pharmacy council is under obligation to register or grant
registration once the students have completed/obtained their
requisite diploma/degree/certificate from the recognized
university/board. There is no question of denying the same, once
they are qualified and eligible to get registration under the
provisions of the Act and regulations made thereunder.
9. After going through the affidavit filed by the PCI and so
also the requisite provisions of the Act and regulations so read
and referred by learned counsel appearing for parties, we are
inclined to observe that, the power of PCI not to grant
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registration in the above background is unjustifiable, unjust and
impermissible. This is basically for the reason that, various
orders have been passed by this Court after hearing parties and
directed the respective authorities to permit/admit the students
having respective intake capacity, based upon the
approval/permission granted by the AICTE. Therefore, at this
stage, supremacy of AICTE, though pending in the Supreme
Court, that just cannot be the reason not to consider the cases of
respective institutions/students. These students are affected
parties and not the institutions or any one else. The Supreme
Court, as well as, High Courts' orders, in our view, at this stage
ought to have been respected by the PCI. There is no challenge
to approval granted by the AICTE raised by the PCI and/or such
council. The respective orders passed by the High Courts as well
as Supreme Court, therefore, binds all the concerned. There is
no reason to deny the registration, as this position is irreversible
so far as students are concerned. Their future career cannot be
halted by the PCI for want of registration which is pending long.
10. The students, who have completed the course and waiting
since 2009 onwards, cannot be denied their right to
proceed/pursue their profession and/or business for want of such
registration. Ultimately, final order by Supreme Court will
required to be followed by all the concerned, as and when
occasion comes. The Supreme Court may pass appropriate
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equitable order in view of facts and law so referred above.
11. Additional factor in the present case is that in Writ Petition
No. 9093 of 2015 (Avinash Pawar and others Vs. The State of
Maharashtra and others) this Court on 24.08.2016 while
allowing the writ petition has recorded as under :
The petitioners may submit their fresh
proposal with the respondent nos.2 and 3
seeking registration as Phamacists. On
receipt of the said proposal, the concerned
respondents shall process the same and take
decision on it on its own merits in
accordance with law and policy and shall not
reject it on the ground of intake capacity
of the respondent no.7. Writ petition is
accordingly disposed of. Rule is made
absolute accordingly. No costs.
12. The petitioners in Writ Petition No. 9093 of 2015 (Avinash
Pawar and others Vs. The State of Maharashtra and
others) (supra) are still required to file fresh Writ Petition No.
2999 of 2017 on 25.08.2016, as instead of above orders,
respondent/PCI refused to accept proposal of petitioners and
refused to grant registration as pharmacists within stipulated
period. The institution is closed for various reasons, the students
have moved this petition and submitted applications/proposals
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for registration, but the respondent/PCI again refused to grant
approval U/Sec. 12 of the Act. This is one of those cases, where
situation is irreversible and ultimately sufferers are students
and not the institution.
13. Therefore, in the interest of justice, without further delay
and to avoid further complications in the matter, we are inclined
to pass order. However, it is made clear that, this judgment will
be subject to final decision of the Supreme Court covering the
aspect of supremacy so referred above. All the concerned shall
take note of this rider and pass appropriate order and/or grant
registration, without waiting for technical formalities, as early as
possible and preferably within a period of two (02) months.
14. It is made clear that, the respondent/PCI to deal with the
applications, if already filed and if not filed, the
petitioners/students shall file fresh proposals/applications within
15 days from today and deposit the requisite fees along with the
applications/proposals, if necessary. In view of above, we pass
following order.
O R D E R
A. The respondent/Pharmacy Council of India/Maharashtra
Pharmacy Council and its agents are directed to grant
registration to petitioners/students as a pharmacists in
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accordance with law, as early as possible and preferably
within a period of two (02) months from the completion of
all formalities by the petitioners/students.
B. The petitioners/students to comply with all the formalities
including payment of fees and take necessary steps to get
appropriate registration from the Pharmacy Council of
India at the earliest.
C. This order is subject to final order of the Supreme Court.
D. Rule is made absolute accordingly in above terms. No
costs.
E. Parties to act on the basis of authenticate copy.
Sd/- Sd/-
[SUNIL K. KOTWAL, J.] [ANOOP V. MOHTA, J.]
bsb/July 17
