Delhi High Court
L.R. College Of Pharmacy vs All India Council For Technical ... on 9 August, 2019
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on : 08.08.2019
Date of decision: 09.08.2019
W.P.(C) 7390/2019 & CM No. 30801/2019
L.R. COLLEGE OF PHARMACY ..... Petitioner
Through: Mr. Sanjay Sharawat & Mr. Divyank
Rana, Advocates.
versus
ALL INDIA COUNCIL FOR TECHNICAL EDUCATION
..... Respondent
Through: Mr. Anil Soni & Mr. Abhinav Tyagi,
Advocates for AICTE.
CORAM:
HON'BLE MS. JUSTICE ANU MALHOTRA
JUDGMENT
ANU MALHOTRA, J.
1. The petitioner- Institute seeks that it be declared that it is entitled to
start the Pharmacy Courses namely "Diploma in Pharmacy" and "Bachelor
of Pharmacy" on the basis of approval having been obtained from the
Pharmacy Council of India and without obtaining approval from the
respondent in terms of circular dated 07.06.2019 with the alternative prayer
that the respondent be directed to the grant of approval to the petitioner for
"Diploma in Pharmacy" and "Bachelor of Pharmacy" courses with an intake
of 60 and 100 seats respectively for the academic session 2019-20 at the
earliest and permit it to admit the students and start courses from the said
academic session.
2. The petitioner submits that it is an unaided and self financed institution
which was established by a registered trust with the object of imparting
education in technical courses and had applied to the respondent- AICTE for
seeking approval for "Diploma in Pharmacy" and "Bachelor of Pharmacy"
courses with an intake of 60 and 100 seats respectively for the academic
session 2018-19 and that the respondent granted approval of the said course
vide letter dated 30.04.2018 for the academic session 2018-19. The petitioner
submits that it was also required to obtain approval from the Pharmacy
Council of India (PCI) and applied for the same and that the Pharmacy
Council of India (PCI) also conducted an inspection and granted approval on
16.03.2018 for the academic session 2018-19. The petitioner submits that
thereafter, it had to obtain affiliation from the Haryana State Board of
Technical Education (HSBTE) and that Haryana State Board of Technical
Education (HSBTE) wrote a letter dated 15.05.2018 to the AICTE alleging
that at the time of inspection, the building shown for the petitioner college
was the same as that of another college named "SEHRAWAT COLLEGE
OF PHARMACY" which college was approved by the AICTE in the year
2015 and thus, the AICTE on the basis of this letter issued a show cause
notice to the petitioner on 27.06.2018 to submit a reply within 10 days and
that the petitioner could thus not start the course from the academic session
2018-19.
3. The petitioner submits that on 16.07.2018, it submitted its reply stating
that the two colleges are totally different and were situated at a distance of
about 2-3 Kms and were being run by different entities and that after
considering the reply submitted by the petitioner, the AICTE decided to
conduct the inspection to verify the correctness of the facts stated by the
petitioner in its reply which was communicated by AICTE to the petitioner
vide letter dated 27.08.2018.
4. The petitioner submits that vide letter dated 31.01.2019, the Haryana
State Board of Technical Education (HSBTE) considered the request of the
petitioner and consented to grant affiliation for the academic session 2019-
2020 and that on 25.03.2019, a joint inspection of the petitioner was
conducted by the AICTE and HSBTE and that in the meanwhile the PCI
considered the application of the petitioner in its meeting held on 09 th and
10th April 2019 and granted approval for the academic session 2019-20 for
both the courses. The petitioner submits that vide an email dated 19.04.2019,
the AICTE called the petitioner for scrutiny of documents on 22.04.2019 and
after the scrutiny of the documents by the respondent-AICTE, the
respondent- AICTE vide its report dated 22.04.2019 recommended the case
of the petitioner for grant of approval for Diploma in Pharmacy and the copy
of the EVC Report of the AICTE dated 22.04.2019 has been annexed with
the petition as Annexure-P9, as per which, it was reported that the institute
had adequate facilities and infrastructure for starting a diploma programme
in Pharmacy.
5. The petitioner submits that even after the said positive
recommendation, the AICTE did not issue a letter of approval for the
academic session 2019-20 and thus, the petitioner filed W.P.(C) 5333/2019
and vide order dated 14.05.2019, the respondent after the filing of that writ
petition, placed the petitioner under the "No Admission Category" for the
academic session 2019-20. The said order dated 14.05.2019 of the
respondent annexed as Annexure-P10 to the petition is to the effect:-
"F. No. AICTE/AB/NWR/PID 1-3707498591/2019-20 Dated: 14/05/2019
ORDER
1. Whereas, the AICTE is a statutory body established by AICTE Act,
1987. The said Act "provides for establishment of an All. India
Council for Technical Education with a view to the propel planning
and coordinated development of the technical education system
throughout the country, the promotion of qualitative improvement
of such education in relation to planned quantitative growth and the
regulation of proper maintenance of norms and standards in the
technical education system and' for matters connected therewith."
2. Whereas, Section 10 of the AICTE Act prescribes the function of the
Council and mandates that it shall be the duty of the Council to take
all necessary steps as it may think fit for ensuring coordinated and
integrated development of technical education and maintenance of
standards. Further, Section 10 (k) of the AICTE Act, empowers the
AICTE to grant approval for starting new technical institutions and
for introduction of new courses or programmes in consultation with
the agencies concerned.
3. Whereas, in order to discharge its duties in accordance with the
provisions contained in the AICTE Act the AICTE has framed the
regulations for grant of approval for starting new technical
Institutions, introduction of courses or programmes and increase /
variation of intake capacity of seats for the courses or programmes
of existing Technical Institutions. The AICTE has also evolved a
Hand book for approval process which details out the procedure as
well as minimum conditions which an institute must fulfil in order
to seek approval for either starting new Technical institutions or for
introduction of courses / programmes as increase/ variation of
intake capacity of seat for courses / programmes as well as existing
Technical Institute.
4. Whereas, L R College of Pharmacy (PID1-3707498591), Hathin,
Pahval, Haryana. The institute was granted LOA for A/Y 2018-19
for running Pharmacy Programmes (UG & Diploma level).
5. Whereas, the council has been received a letter dated 15.05.2018
from Secretary, Haryana State Board of Technical Education
(HSBTE), Panchkula regarding non-grant of provisional
affiliation. in respect of the institute on the ground that before
considering Provisional affiliation for A/Y 201.8-19, an EVC was
conducted to the institute on 09.05,2018 by HSIBTE, Panchkula and
it was observed that building shown for the proposed L R College
of Pharmacy is same as that of Sehrawat College of Pharmacy
approved by AICTE and affiliation to HSBTE.
6. Whereas, based on the complaint of HSBTE, Panchkula, SCN dated
27.06.2018 was issued to the institute. The institute has denied the
allegation made in complaint vide its reply letter dated 16.07.2018.
7. Whereas, the matter was placed before Standing Hearing
Committee on 13,08,201S for observation/ recommendation- The
representative of the institute was also present before the
committee. The committee recommends that a joint EVC by AICTE
and HSBTE be conducted simultaneously at the cost of Institute.
8. Whereas, a joint EVC was conducted by AICTE and Dr. Sultan
Singh, GOAF, HSBTE to the institute on 25.03.2019, which
contains deficiencies. The EVC report has been uploaded on portal.
9. The EVC report was placed before Standing Hearing Committee on
06.04,2019 for recommendation. The representatives of the institute
were also present before the SHC. The recommendation of SHC is
as follows:
Recommendation:
"Joint inspection was to be conducted by AICTE with HSBTE to
dispose off the instant case wherein, it was to be ascertained that
whether the building for the L.R. College of Pharmacy and
Sehrawat College of Pharmacy are same. From the perusal of EVC
report the aforementioned aspect could not be ascertained. Further,
the HSBTE representative in his letter dated 25.03.2019 has
expressed his reservation about starting diploma course in the same
building.
In the aforementioned circumstances, it is recommended to conduct
simultaneous scrutiny with EVC for both the institute viz. LR.
College of Pharmacy and Sehrawat College of Pharmacy by same
teams before considering any future extension of approval.
10.Whereas, a simultaneous Scrutiny with EVC was conducted by R.O.
both of the following institutes, which contains deficiencies.
1. L. R. College of Pharmacy (PID 1-3707498591), Hathin, Palwal,
Haryana
2. Sehrawat College of Pharmacy (PID1 ^2491139531 j, Hathin,
Palval, Haryana.
11.Whereas, the Institute was given an appeal before Standing
Appellate Committee (SAC) on 29.04.-2019. The observations and
recommendation of SAC are as under: -
SI. Deficiency noted by Observations and
No. Scrutiny/KVC Committee supporting proof
verified by Standing
Appellate Committee to
clear the deficiencies
1. Proof of working capital
(funds) (Refer APH 2018-
19)- Not presented
2. Certificate issued by bank
manager regarding
financial status of
application (Refer-APH Not produced. Not
2018-19) -Not presented Accepted
3. Details of Classification of
Land (Mega-
/Metro/Urban/Rural)
Certificate by the
Competent Authority), Land
Conversion Certificate &
Land Use Certificate arc
same.
4. Details of Site Plan and Documents submitted.
Complete Building Plan of Accepted.
proposed Technical Institute
prepared by an Architect
registered with Council for
Architecture (COA)/licensed
surveyor and duly approved
by the
Competent Plan Sanctioning
Authority of. The concerned
State/UT Admission are
same
5. Shortfall in Classroom,
Laboratory and Seminar
Hall- Pharmacy
6. Shortfall in Classroom -
Pharmacy (Diploma)
7. Classroom, Tutorial Rooms,
Class Room-tutorial Room,
Laboratory, Machine Room,
Instrument Room and
Laboratories-All -- Not
available
8. Barrier free Environment - Undertaking submitted.
Not Accepted/ Not - Accepted.
Available
9. Group Insurance - Not
Accepted/ Not Available
10. Insurance for Students - Not
Accepted/ Not Available
11. Provision to watch MOOCS
courses - Not Accepted/ Not;
Available
12. Implementation of Food Undertaking submitted.
Safety and Standards Act, Not Accepted.
2006 in the Institution-Not
Accepted/ Not Available
13. Appointment of Student
Counselor - Not Accepted/
Not Available
14. Implementation of Unnat
Barat Abhiyan - Not
Accepted/ Not Available
15. Establishment of Anti
Ragging Committee - Not
Accepted/ Not Available
16. Establishment of committee
for SC/ST - Not Accepted/
Not Available
17. Establishment of internal
complaint committee (ICQ
committee a\s per section 4
of Sexual Harassment of
Women at workplace
(prevention prohibition and
redressal) Act,2013 - Not
Accepted/ Not Available. Not submitted. Not
18. Establishment of grievance Accepted.
redressal committee in the
university and appointment
of OMBUDSMAN by the
university-Not Accepted/ Not
Available
19. University Industry Cell -
Not Accepted/ Not Available
20. National Academic
depository (NAD) as per
MHRD directives - Not
Accepted/ Not Available
21. Details of Principal/ Documents submitted.
Director/Head of the Accepted
Institution - Not Accepted.
22 Details of Faculty - Not Not submitted. Not
Accepted Accepted
23 Compliance of AICTE sixth Undertaking submitted.
pay commission (please also
verify and collect the TDS
Certificate to verify the claim
of the Institution)
-Whether salary for all the
faculty members are paid as
per sixth pay commission
recommendations
-Whether the payment of
salaries are through
RTGS/NEFT/Online
24. In case of institution leaving Not applicable.
approval to admit PIO/ FN/
OCI category -Whether
hostel facilities are available
for accommodating students
of FN/PIO/OCI category.
Details of the hostel (number
of rooms, pax, per room,
mess facility, internet and
other facilities
25 List and details of hard copy Not submitted. Not
of International Journals Accepted
subscribed.
26 Remarks of Expert Visit Deficiencies noted. Not
Committee; The institute has Accepted.
adequate facilities of
Infrastructure for starting a
diploma programme in
Pharmacy.
Recommendation of SAC-
"Based on the current financial status of the applicant and
in view of laps number of deficiencies in identification of
faculty even the Principal and provision of facilities, it is
recommended to place the institution under 'No
Admission' category."
12.In view of the above, the compliance submitted by the
institute was considered as per rules. In view of the record
and the deficiency identification of faculty even the
Principal and provision of facilities etc. as above pointed
out by the Standing Appellate Committee (SAC) Chaired by
a Former Justice (Retd.) in accordance with the Rule 13.7
of Appendix 13 of APHB 2019-2020 and in compliance with
the judgment of the Hon'ble Supreme Court in the case of
MAA Vaishno Devi as reported in (2013) 2 SCC 617 at para
54 and Parshwanath case reported in (2013) 3 SCC 385
para 28 which explicitly states "compliance with the
conditions for approval as well as Regulations and
provisions of the AICTE Act is an unexceptionable
condition", which aim to ensure for attaining and
maintaining of competitive, recognized global standards in
Technical Education. It is undeniably essential to ensure
strict adherence to the prescribed parameters for imparting
of such educational courses including the requisite
infrastructure, which is ultimately aimed at protecting, the
vital interests of our students.
13.Therefore, after examining the entire matter in the facts and
circumstances mentioned herein above,, and in terms of the
provisions of the Approval Process Hand Book20.19-20 and
also the terms and conditions mentioned in the Letter of
Approval, Council has decided to place LR College of
Pharmacy "(PID 1-3707498591), Hathin, Pahval,
Haryana under "No admission category" for the academic
year 201-9.-20.
14.It must be further noted, that clause 6.9 of the Regulations
2018 prohibits grant of any conditional approval and clause
2.24 of Chapter of the Approval Process Handbook 2019-20
read with clause 15 of Regulations, 2018 mandate
Extensions of Approval for the Academic year 2019-20 shall
not be granted after 30th April, 2019 in compliance with the
order of the Hon'ble Supreme Court of India dated.
13.12.20I2(CA No. 9048/2012).
15.It may be noticed that clause 2.5.3 of Approval Process
Handbook 2019-20 is implemented on the course run by the
Institute, wherever applicable.
This has the approval of the Competent Authority."
6. The petitioner submits that it challenged the said order dated
14.05.2019 by filing W.P.(C) 5390/2019 and both the writ petitions filed by
the petitioner were listed for hearing on 07.06.2019, on which date the
petitioner withdrew W.P.(C) No.5333 of 2019 in view of having filed W.P
(C) No.5390 of 2019 and on 07.06.2019 W.P.(C) No.5390 of 2019 was
adjourned to 12.06.2019. The petitioner further submits that in terms of the
verdict of the Hon'ble Supreme Court in "Parshavanath Charitable Trust
& Ors vs. AICTE & Ors" [(2013) 3 SCC 385], a fixed time schedule has
been directed by the Hon'ble Apex Court, according to which the AICTE
was required to pass final approval orders in respect of all cases latest by 30th
of April of every year and the petitioner submits that it was required to pass
approval orders latest by 30.04.2019 and in order to seek extension of time
for this academic session, the AICTE filed an application before the Hon'ble
Supreme Court for seeking extension of time till 10.06.2019 and the said
application was allowed vide order dated 06.06.2019 and the time was
extended till 10.06.2019.
7. The petitioner submits that thereafter that on 07.06.2019 the AICTE
issued a circular and decided to grant approval to all pharmacy colleges
which had obtained approval from the PCI for academic session 2019-2020
and for this purpose it was stated that all such colleges would have to submit
an affidavit in the prescribed format latest by 10.06.2019. The petitioner
submits that it was eligible under the said circular and submitted the desired
format with the AICTE on 10.06.2019 and complied with all the
requirements by said date.
8. The petitioner further submits that on 12.06.2019, W.P.(C) No.5390
of 2019 was listed for hearing before the Court and during the course of
hearing, the petitioner apprised the Court about the circular dated 07.06.2019
and requested that the AICTE be directed to take a decision on the affidavit
submitted by it in compliance of the said circular, which suggestion was also
accepted by the counsel for the AICTE and accordingly vide order dated
12.06.2019 the writ petition was disposed of by this Court by directing the
AICTE to take a decision latest by 17.06.2019 and communicate the same to
the petitioner latest by 18.06.2019.
9. The petitioner submits that the order dated 12.06.2019 however, was
not complied with by the respondent and the petitioner thus, filed Cont. Case
(C) No.566/2019 on 02.07.2019, which was to be listed for hearing on
03.07.2019, but on the institution of the same, the AICTE i.e. the respondent
passed an order dated 02.07.2019 and declined the grant of approval to the
petitioner in terms of circular dated 07.06.2019 on the ground that the same
applied only to new institutions and did not apply to the petitioner as it was
an existing institution. The said order dated 02.07.2019 of the respondent-
AICTE reads to the effect:-
"F.No. AICTE/AB/NWR/1-3707498591/2019-20 Dated 02.07.2019
ORDER
1. Whereas, the AICTE is a statutory body established by AICTE
Act, 1987. The said Act "provides for establishment of an All.
India Council for Technical Education with a view to the
propel planning and coordinated development of the technical
education system throughout the country, the promotion of
qualitative improvement of such education in relation to
planned quantitative growth and the regulation of proper
maintenance of norms and standards in the technical
education system and' for matters connected therewith."
2. Whereas, Section 10 of the AICTE Act prescribes the function
of the Council and mandates that it shall be the duty of the
Council to take all necessary steps as it may think fit for
ensuring coordinated and integrated development of technical
education and maintenance of standards. Further, Section 10
(k) of the AICTE Act, empowers the AICTE to grant approval
for starting new technical institutions and for introduction of
new courses or programmes in consultation with the agencies
concerned.
3. Whereas, in order to discharge its duties in accordance with
the provisions contained in the AICTE Act the AICTE has
framed the regulations for grant of`approval for starting new
technical Institutions, introduction of courses or prograrnmes
and increase / variation of intake capacity of seats for the
courses or programmes of existing Technical Institutions. The
AICTE has also evolved a Hand book for approval process
which details out the procedure as well as minimum conditions
which an institute must fulfil in order to seek approval for
either starting new Technical institutions or for introduction
of courses / programmes as increase/ variation of intake
capacity of seat for courses / programmes as well as existing
Technical Institute.
4. Whereas, after following established procedure as contained
in Approval Process Handbook (APH) 2019-20 and based on
the recommendation of the SAC held on 29.04.2019, LR
College of Pharmacy (PID 1-3707498591) Hathin, Palwal,
Haryana was placed under "No Admission" category due to
current financial status of the institute and large number of
deficiencies in identification of the faculty vide Speaking
Order of even number dated 15.05.2019.
5. And whereas, aggrieved of the above decision of AICTE, the
said Institute filed a WP (C) No.5390/2019 in the Hon'ble
High Court Delhi with the following prayer:
a. Issue writ or direction in the nature of mandamus to set aside
the impugned order dated AICTE/AB/NWR/PID 1-
3370749859/2019-20 dated 14.05.2019 passed by the
Respondent and;
b. Issue writ or direction in the nature of mandamus to the
respondent to allow the petitioner college to take admission in
Pharmacy course for the academic year 2019-20;
c. Pass any other order or direction which are necessary in the
interest of justice.
6. And whereas, the Hon'ble High Court of Delhi passed the
order dated 12.06.2019 in the above said matter as under:-
This is an application for withdrawal of the writ petition as the
petitioner wanted to approach Hon'ble Supreme Court of
India, however, it has been jointly submitted by both the
parties that certain developments have taken place in the
meantime. Both the counsels i.e. Counsel for L. R. College of
Pharmacy and counsel for All India Council For Technical
Education have submitted that Hon'ble Supreme Court was
seized of many cases where approval of institutions had
granted by Pharmacy Council of India (PCI) whereas there
was no approval of AICTE. It was agreed to that if PCI had
already granted the approval to a college, then the said
education institution shall be given one chance to file affidavit
before All India Council For Technical Education in terms of
circular dated 07th June, 2019 and the time was granted upto
10th June, 2019.
Learned counsel for the petitioners further submits that
in terms of the said circular the present petitioner has already
submitted the affidavit.
Learned counsel for the respondent submits that if the
affidavit has been submitted by the petitioner, same will be
considered by the All India Council For Technical Education
in next 4-5 days and appropriate decision will be taken.
At the request of the counsel for the petitioner, this
petition is disposed off with direction to All India Council For
Technical Education to take a decision on the affidavit
submitted by the petitioner by 17.06.2019 and said decision be
communicated to the petitioner as well as to the counsel
appearing for the petitioner by 18.06.2019.
7. And whereas, Sehrawat Charitable Trust VPO &The, Hathin,
Distt. Palwal (Haryana) submitted an application bearing Ref.
No.SCT/2019/68 dated 21.06.2019 address to the Vice
Chairman AICTE requesting to consider LR College of
Pharmacy as a New Institute and grant approval for the
session 2019-20.
8. And whereas, on examination of the facts and circumstances
of the case, it has been found that in pursuance of the Hon'ble
Supreme Court order dated 06.06.2019 in MA No.1068/2019
in CA No.9048 of 2012 titled as Parshvanath Charitable Trust
V/S AICTE and Ors. only the new Pharmacy Institutions were
asked to submit affidavit by 10th June-2019 vide circular
No.AICTE & PCI/AB/Pharmacy/2019-20 dated 07.06.2019
for grant of approval to run Pharmacy Programme approved
by PCI from current AY 2019-20 taking into consideration of
the mutual decision taken by the AICTE & PCI
9. And whereas, despite being in Chapter-II category (Existing
Institute) and not being asked to submit affidavit as per the
above said order of the Hon'ble Supreme Court, Sehrawat
Charitable Trust, VPO & The, Hathin, Distt. Pawal (Haryana)
submitted a affidavit in respect of LR College of Pharmacy for
running Pharmacy Programme (B. Pharma and D. Pharma)
for AY 2019-20 to RO, NWRO AICTE Chandigarh vide letter
no.SCT/062/19 dated 10.06.2019.
10.And whereas, on examination of the order dated 12.06.2019
passed by Hon'ble High Court of Delhi, Speaking Order dated
15.05.2019 issued by AICTE and affidavit submitted by
Sehrawat Chritable Trust and order passed by the Hon'ble
Supreme Court in respect of new Pharmacy Institute, the
following has bene observed:-
i. As per order of the Hon'ble Supreme Court, all the New
Pharmacy Institute who were willing to run Pharmacy
programme approved by PCI from current AY 2019-20 and
shall fulfil APH norms and process laid down by AICTE before
the start of the next AY 2020-21, were asked to submit an
affidavit in this regard to respective RO by 10-06.2019 for
consideration.
ii. In the order dated 12.06.2019 passed by the Hon'ble High
Court of Delhi, no direction has been passed on the prayer
made in the writ petition by the L.R. College of Pharmacy.
iii. The direction of the Hon'ble High Court is based the decision
of the Hon'ble Supreme Court dated 06.06.2019 in MA
No.1068/2019 filed in CA No.9048/2012 titled as Parshvanath
Charitable Trust vs. AICTE & Ors. which is for the institute
applicable for the instituted applied under Chapter-I category
(New Institute/ New Programme/level) and not for the
Chapter-II category cases (Existing Institute)
iv. The Institute had itself applied for Extension of Approval for
the Academic year 2019-20 under Chapter-II category
(Existing Insitute) on AICTE Web Portal.
11.And whereas, considering the fact that L. R. College of
Pharmacy, Palwal, Haryana was issued LOA for New
Institution in the AY 2018-19 for running Pharmacy
programme (D. Pharma-60 seats and B.Pharma- 100 seats)
vide latter dated 30.04.2018 and has already been placed
under "No Admission'' category for the AY 2019-20 due to
current final status & large no of deficiencies in identification
of faculty vide AICTE Speaking Order dated 15.05.2019, is not
eligible for issue of fresh LOA/EOA for the AY 2019-20 in
pursuance to Hon'ble Supreme Court order dated 06.06.2019
in MA No.1068/2019 filed in CA No.9048/2012 titled as
Parshvanath Charitable Trust vs. AICTE & Ors. being in the
Chapter-II (Existing Institute)
12.Now, therefore, after examining the entire facts &
circumstances mentioned herein above, and in terms of the
provisions of the approval process handbook (APH) 2019-20,
the Council has decided not to accede to the request of the L.R.
College of Pharmacy, VPO & The. Hathin, Distt. Pawal
(Haryana) made vide letter no.SCT/2019/68 dated 21.06.2019
for allowing Pharmacy programme for AY 2019-20 as the
institute belong to chapter-II category (Existing Institute) and
not in chapter-I (New Institute/New Programme/Level). Hence
said LR College of Pharmacy shall continue to be placed
under "No Admission" category for the Ay 2019-20 as already
conveyed vide said Speaking Order dated 15.05.2019.
This has the approval of the Competent Authority."
10. The petitioner submits that in view of the said order dated 02.07.2019,
it withdrew the Cont. Case (C) 566/2019. The petitioner has further
submitted that as per the schedule issued by the Haryana State Board of
Technical Education (HSBTE), the counseling for academic session 2019-
20 started on 13.06.2019 and will end on 14.08.2019. The petitioner submits
that in "Tamil Nadu Private Professional Colleges Association Vs. Union
of India and others" in W.P No.4358 of 2018, the Hon'ble High Court of
Madras vide order dated 31.01.2019 has held that in as much as both the
Pharmacy Act, 1948 and the AICTE Act, 1987 contain provisions regarding
pharmacy education leading to duplications of regulations and considerable
confusion at the field level, with it having been resolved in a joint meeting
and it was unanimously agreed between the AICTE and the PCI that the
AICTE Act governing the general technical education would be amended
deleting 'pharmacy' from its mandate and that the pharmacy education would
thereafter be governed by the Pharmacy Act, 1948, till such time the
amendment takes place, the PCI and the AICTE were to jointly inspect the
institutions as and when required for maintaining required standards of
education and that thus, the Hon'ble High Court of Madras held that it was
of the considered opinion that the decision has already been taken that the
PCI would be given primacy over the AICTE instead of dual inspection and
hence, it was thus better to allow the PCI to undertake inspection to find out
the infrastructure facilities and then to grant the consequential approval
therein. It was also further observed vide paragraph 6 of the said verdict of
the Hon'ble High Court of Madras, which reads to the effect:-
"6. Needless to mention that the petitioner need not apply to
AICTE for inspection and also approval.",
and thus, that the petitioner need not apply to the AICTE for inspection and
approval.
11. The petitioner has also placed on the record the copy of the order dated
24.07.2018 of the Hon'ble Supreme Court in "Progressive Education
Societys College of Pharmacy & Anr. Vs. The State of Maharashtra &
Ors." in Special Leave Petition (Civil) No.24798/2018, vide which it was
inter alia observed by the Hon'ble Supreme Court that it was desirable that
the Government of India should revisit the definition in Section 2g of
AICTE, whether there could have been inclusion of pharmacy when it was
already covered by the Pharmacy Act, 1948.
12. Notice of the petition having been served on the respondent. The
respondent has put in appearance and filed its counter affidavit.
13. The basic contention of the petitioner is to the effect that in terms of
the circular dated 07.06.2019 issued by the AICTE, the petitioner's institute
squarely fell within the same and in as much as the said circular did not make
any distinction between new and existing institutions and applied to all cases
where the PCI had granted approval, in as much as the PCI had granted
approval for the academic session 2019-20, the petitioner was entitled to the
benefit of the said circular. The petitioner has thus, submitted that the
respondent has granted permission to a large number of institutions on the
basis of the circular dated 07.06.2019 even in those cases where applications
have been rejected twice and that applying the said circulars differently for
new and existing institutions, the AICTE had drawn an artificial and
whimsical distinction which had no basis and that the classification in
relation thereto, was bad in law and liable to be quashed.
14. The petitioner has submitted that pursuant to the show cause notice
dated 27.06.2018 sent to it by the AICTE in view of a complaint that had
been made by the Board to the AICTE, that at the time of inspection, the
building shown for the petitioner was the same as that of the another college
namely "SEHRAWAT COLLEGE OF PHARMACY" which college was
approved by the AICTE in the year 2015 and thus, the AICTE on the basis
of this letter, had issued a show cause notice to the petitioner on 27.06.2018
and called upon the petitioner to submit a reply within 10 days, to which the
petitioner submitted its reply on 16.07.2018 stating that the two colleges
were totally different and were situated at the distance of about 2-3 Kms. and
were being run by different entities.
15. The petitioner submits that the AICTE after considering the said reply,
decided to conduct the inspection to verify the correctness of the facts stated
by the petitioner in its reply and the inspection was conducted by the EVC,
which gave a positive recommendation and that vide letter dated 31.01.2019,
the Haryana State Board of Technical Education (HSBTE) considered the
request of the petitioner and consented to grant affiliation for the academic
session 2019-2020 and it has thus been submitted by the petitioner that the
allegations by the Board stood vindicated and that the petitioner should get
the benefit of approval granted on 30.04.2018.
16. The petitioner has further submitted that the impugned order dated
14.05.2019 passed by the AICTE was without jurisdiction and travelled
beyond the scope of the show cause notice dated 27.06.2018, in as much as
the basis of that notice was to ascertain and verify the allegations made by
the Board that the two institutions stated therein were the one and the same
having only one building, which had been verified and found to be false and
that after having arrived at the said decision, the AICTE ought not to have
widened the scope of the show cause notice by passing the impugned order
dated 14.05.2019 on extraneous grounds.
17. The petitioner has thus submitted that the impugned order dated
14.05.2019 is violative of the principles of natural justice. Reliance is thus,
placed on behalf of the petitioner on the verdict of the Hon'ble Supreme
Court as well as of this Court in "Inderjit Singh Pathak vs UOI" 115 (2004)
DLT 375; "Tarlochan Dev Sharma vs. State of Punjab" (2001) 6 SCC 260;
"Nasir Ahmed vs Assistant Custodian" (1980) 3 SCC 1; "Rama Pandey vs
UOI" 162 (2009) DLT 202; "Commissioner of Income Tax, Delhi
(Central)-I Vs. Contimeters Electricals Pvt. Ltd." (2009) 224 CTR (Del)
366; "ATS Infrastructure vs. Commissioner of Income Tax" (2009) 318
ITR 299 Delhi; "Ramchander vs UOI" 38 (1989) DLT 402.
18. The petitioner has thus, put forth its submissions qua the grounds
contained in the impugned order dated 14.05.2019 to submit to the effect:-
"
SI. No. Deficiency noted by Submissions on behalf
Scrutiny/KVC of the Petitioner
Committee
1. Proof of working capital Remark of AICTE - Not
(funds) (Refer APH 2018- produced. Not accepted.
19)- Not presented
2. Certificate issued by bank It is submitted that the
manager regarding AICTE is referring to the
financial status of APH 2018-19. The said
application (Refer-APH requirements had been
2018-19) -Not presented complied with by the
3. Details of Classification Petitioner and then only
of Land (Mega- the AICTE had granted
/Metro/Urban/Rural) approval for academic
Certificate by the session 2018-19 vide order
Competent Authority), dated 30.04.2018. At this
Land Conversion stage the AICTE cannot
Certificate & Land Use turn around and take this
Certificate arc same. objection by referring to
APH 2018-19. The said
objection is totally
baseless.
9. Group Insurance - Not Remark of AICTE -
Accepted/ Not Available Undertaking submitted.
10. Insurance for Students - Not Accepted.
Not Accepted/ Not
Available
It is submitted that the said
11. Provision to watch
requirements are required
MOOCS courses - Not
to be met by the Petitioner
Accepted/ Not; Available
only before the
12. Implementation of food commencement of the
safely and standards Act, academic session which
2006 in the Institution-Not takes place after grant of
Accepted/ Not Available approval by the AICTE.
13. Appointment of Student Since the AICTE has not
Counselor - Not Accepted/ granted approval the
Not Available question of their
14. Implementation of Unnat compliance does not arise.
Barat Abhiyan - Not The said objection is thus
Accepted/ Not Available baseless.
15. Establishment of Anti Remark of AICTE - Not
Ragging Committee - Not submitted.
Accepted/ Not Available
16. Establishment of
committee for SC/ST -
Not Accepted/ Not Accepted. It is submitted
Available that the said requirements
17. Establishment of internal are required to be met by
complaint committee the petitioner only before
(ICQ committee as per the commencement of the
section 4 of Sexual academic session which
Harassment of Women at takes place after grant of
workplace (prevention approval by the AICTE.
prohibition and redressal) Since the AICTE has not
Act,2013 - Not Accepted/ granted approval the
Not Available. question of their
18. Establishment of compliance does not arise.
grievance redressal The said objection is thus
committee in the baseless.
university and
appointment of
OMBUDSMAN by the
university-Not Accepted/
Not Available
19. University Industry Cell -
Not Accepted/ Not
Available
20. National Academic
depository (NAD) as per
MHRD directives - Not
Accepted/ Not Available
22 Details of Faculty - Not Remark of AICTE - Not
Accepted submitted. Not accepted.
It is submitted that the said
requirement is required to
be met by the Petitioner
only after approval has
been granted by the
AICTE. The said
objection is thus baseless.
The relevant clause of the
APH is as under:-
1.14 Appointment of
Principal/ Director and
Faculty in newly
approved Institution/
Programme a. New
Technical Institutions
granted Letter of
Approval shall comply
with the appointment of
Faculty/ Principal/
Director as the case
may be, as per Policy
regarding minimum
qualifications pay
scales etc., as
prescribed in the
Approval Process
Handbook, b.
Institutions shall
appoint Faculty/
Principal/ Director,
other Technical
Supporting Staff and
Administrative Staff
strictly in accordance
with the methods and
procedures of the
concerned affiliating
University/ Board,
State Government/ UT
and Hon'ble Court
directions, if any, and
as applicable in the case
of selection procedures
and Selection
Committees. c. The
information about these
appointments of Staff
in the prescribed
Format shall also be
uploaded on the Web-
Portal of AICTE. d.
Without the
appointment of all the
Faculty members and
other Staff, an
Institution shall not
commence the Courses.
25 List and details of hard Remark of AICTE - Not
copy of International submitted. Not accepted. It
Journals subscribed. is submitted that said
requirement had been
complied with by the
Petitioner and then only
the AICTE had granted
approval for academic
session 2018-19 vide order
dated 30.04.2018. The
said objection is totally
baseless.
26 Remarks of Expert Visit Remark of AICTE -
Committee; The institute Deficiencies noted. Not
has adequate facilities of accepted.
Infrastructure for starting a The AICTE has rejected
diploma programme in the said recommendation
Pharmacy. of the EVC without
assigning any reasons and
without issuing any notice
to the Petitioner.
"
19. The petitioner has thus submitted that it is entitled to the relief prayed
for in the writ petition on the basis of Clause 2.5.2 of the APH 2019-20 which
says that EOA shall be granted on the basis of Self-Disclosure of required
facilities and infrastructure availability. The said clause 2.5.2 of the APH
2019-20 reads to the effect:-
"2.5 EoA/ Break in EoA/ Restoration of Intake
2.5.2 Procedure
a. The applications received shall be processed as per the
norms and procedures prescribed in the Approval Process
Handbook. The Institution shall also have to adhere to the
existing Central, State and Local Laws.
b. Grant of Extension of Approval is based on Self-
Disclosure of required facilities and Infrastructure
availability as submitted online on AICTE Web-Portal. The
Council shall grant the desired approval, only after
confirming that the Applicant had fulfilled all the norms and
standards prescribed in Approval Process Handbook.
c. Institutions which had not applied for Extension of
Approval in the preceding Academic Years shall be
considered as "Break in EoA" and shall be processed for
Extension of Approval upon verification of adequate
Infrastructural facilities as specified in the Approval
Process Handbook by an Expert Visit Committee."
20. The petitioner submits that in terms of the EVC recommendation in
its report dated 22.04.2019, it is entitled to start atleast the Diploma course
and further submits that the case of the petitioner is fully covered by the
verdict of the Hon'ble High Court of Madras in W.P.(C) 4358/2018 and that
the petitioner is entitled to start the course on the basis of approval having
been granted by the PCI and without obtaining approval from the AICTE.
21. The respondent through its counter affidavit submits that it has been
established in accordance with the provisions as contained in the All India
Council for Technical Education Act, 1987 with a view to ensure the proper
planning and coordinated development of the technical education system
throughout the country, for promotion and qualitative improvements of such
education in relation to planned quantitative growth and for the regulation
and proper maintenance of norms and standards in the technical education
system and for matters connected therewith.
22. The respondent has further submitted that in terms of Section 23 of
the AICTE Act, 1987 powers have been conferred on the Council to make
Regulations generally to carry out the purposes of the AICTE Act, 1987 and
without prejudice to the generality of such power, the Council may also
frame Regulations to provide for various matters as provided under Section
23(2) of the AICTE Act, 1987 and for which the respondent has framed
Regulations for grant of approval for starting new Technical Institutions and
introduction of courses/ programs of existing Technical Institutions and has
also evolved a Hand Book of Approval process, which details out the
procedures as well as minimum conditions which an institute must fulfill in
order to seek approval for either starting new Technical Institutions or for
introduction of courses/ programs as increase/variation of intake capacity of
seat for courses/ programs and existing Technical Institute.
23. As regards, the aspect of Section 2g of the AICTE Act, 1987 including
Pharmacy in Technical Education and the reliance placed on behalf of the
petitioner on the verdict of the Hon'ble High Court of Madras in W.P.(C)
4358/2018, which was disposed of vide order dated 31.01.2019, it has been
submitted on behalf of the respondent that in Cont. Case. (C) 573/2018 titled
as "Harnam Singh College of Pharmacy Vs. Prof. B Suresh & Anr." along
with other connected matters, the Hon'ble Division Bench of this Court has
vide order dated 06.03.2019 directed to the effect:-
"It is submitted by learned counsel for the petitioners that
in light of the statement made by the Union of India [UOI]
before the Lucknow Bench of the Allahabad High Court in
Seth Vishambhar Nath Educational Society Thru.
President & Anr. Vs. State of UP Thru. Principal Secretary
Technical Education and Ors. [Misc. Single
No.15607/2018 and connected cases, decided on
03.12.2018] that the issue with respect to primacy of either
of the regulatory bodies, i.e. All India Council for
Technical Education [AICTE] and/or the Pharmacy
Council of India (PCI] is under its active consideration
and due guidelines would be issued, the petitioners do not
wish to press the claims in these proceedings: it is
submitted that the learned counsel has instructions
accordingly to withdraw the petitions. W.P.(C}
6909/2018, 7122/2018, 7315/2018, 7320/2018 &
7363/2018 and Cont. Case [C) 573/2018 & 575/2018 are
accordingly dismissed as withdrawn along with the
pending applications."
24. The respondent has further submitted that it has given sufficient
number of opportunities to the petitioner's institute to produce documentary
evidence for rectification of deficiencies pointed out by the Scrutiny/ EVC
but that the petitioner had failed to comply with the same. Inter alia the
petitioner submits that in as much as the last date for grant of approval by
the AICTE has expired long back on 30.04.2019 in terms of the verdict of
the Hon'ble Supreme Court in "Parshavanath Charitable Trust & Ors vs.
AICTE &Ors" (2013) 3 SCC 385, followed in "CAN College of Pharmacy
Vs. All India Council for Technical Education" in LPA No. 540/2015 by
this Court, as well as in "ACN College of Pharmacy Vs. All India Council
for Technical Education" in LPA No.272/2017, the prayer made by the
petitioner in any event, cannot be granted now.
25. On a consideration of the submissions that have been made on behalf
of either side, it is essential to observe that the circular dated 07.06.2019 of
the respondent was categorically in relation to new pharmacy institutes
applications and the petitioner even though did not start functioning in view
of the non-grant of affiliation to the petitioner by the Haryana State Board of
Technical Education (HSBTE) for the academic year 2018-19, as contended
rightly on behalf of the respondent did not fall within the ambit of the circular
dated 07.06.2019 for the extension of the date for grant of approval to it till
the date 10.06.2019 in terms of the directions of the Hon'ble Supreme Court
dated 06.06.2019 in M.A. No.1068/2019 in Civil Appeal No.9048/2012. The
other factum that cannot be overlooked is that the impugned order
dated 14.05.2019 of the respondent categorically lists out several
deficiencies as put forth by the respondent on the basis of
recommendations received from the SAC i.e. Standing Appellate
Committee and it has observed categorically to the effect:-
"Recommendation of SAC-
"Based on the current financial status of the applicant and
in view of laps number of deficiencies in identification of
faculty even the Principal and provision of facilities, it is
recommended to place the institution under 'No
Admission' category.",
and it was further thus, observed by the respondent vide the impugned order
to the effect:-
"12. In view of the above, the compliance submitted by the
institute was considered as per rules. In view of the record and
the deficiency identification of faculty even the Principal and
provision of facilities etc. as above pointed out by the Standing
Appellate Committee (SAC) Chaired by a Former Justice
(Retd.) in accordance with the Rule 13.7 of Appendix 13 of
APHB 2019-2020 and in compliance with the judgment of the
Hon'ble Supreme Court in the case of MAA Vaishno Devi as
reported in (2013) 2 SCC 617 at para 54 and Parshwanath
case reported in (2013) 3 SCC 385 para 28 which explicitly
states "compliance with the conditions for approval as well
as Regulations and provisions of the AICTE Act is an
unexceptionable condition", which aim to ensure for
attaining and maintaining of competitive, recognized global
standards in Technical Education. It is undeniably essential to
ensure strict adherence to the prescribed parameters for
imparting of such educational courses including the requisite
infrastructure, which is ultimately aimed at protecting, the
vital interests of our students."
26. In the circumstances, the deficiencies that had been pointed out by the
SAC, despite the factum that all the said deficiencies had not been pointed
out in the show cause notice dated 27.06.2018 issued to the petitioner on the
basis of the complaint of the Haryana State Board of Technical Education
(HSBTE), Panchkula to the effect that it had been observed by the Haryana
State Board of Technical Education (HSBTE), Panchkula that the building
shown for the proposed L.R. College of Pharmacy was the same as that of
Sehrawat College of Pharmacy approved by the AICTE and affiliation to
HSBTE, nevertheless, in view of the deficiencies that had been pointed out
by the SAC which relate to the deficiency of identification of faculty even of
the Principal and provision of facilities as detailed by the SAC in terms of
Rule 13.17 of Appendix-13 of APH of 2019-20 and the verdict of the
Hon'ble Supreme Court in "Maa Vaishno Devi Mahila Mahavidyalaya Vs.
State of U.P. and Ors." (2013) 2 SCC 617, wherein vide paragraph 54, it has
been observed to the effect:-
"54. The non obstante language of Section 16 requires the
affiliating body to grant affiliation only after recognition or
permission has been granted by NCTE. The provisions of
Section 16 give complete supremacy to the expert body/NCTE
in relation to grant of recognition. In fact, it renders the role
of other bodies consequential upon grant and/or refusal of
recognition. When NCTE is called upon to consider an
application for grant of recognition, it has to consider all the
aspects in terms of Section 14(3)(a) of the NCTE Act. The
amplitude of this provision is very wide and hardly leaves any
matter relatable to an educational institution outside its ambit.
To put it simply, NCTE is a supreme body and is vested with
wide powers to be exercised with the aid of its expertise, in
granting or refusing to grant recognition to an educational
institution. NCTE is the paramount body for granting the
approval/recognition not only for commencing of fresh
courses but even for increase in intake, etc. The Council has
to ensure maintenance of educational standards as well as
strict adherence to the prescribed parameters for imparting of
such educational courses, including the infrastructure. The
provisions and scheme of the NCTE Act are in pari materia
with that of the Medical Council of India Act, 1956 and the
All India Council for Technical Education Act, 1987, etc.",
the principles laid down therein being wholly applicable in the instant case
and the verdict of the Hon'ble Supreme Court in "Parshavanath Charitable
Trust and Ors. Vs. All India Council for Tech. Edu and Ors." (2013) 3
SCC 385, wherein vide paragraph 28, it has been observed to the effect:-
"28. We have already noticed that the compliance with the
conditions for approval as well as regulations and provisions
of the AICTE Act is an unexceptionable condition. Clause
9.22 of the Handbook of Approval Process issued
by AICTE provides a complete procedure for change of
location, station and the same is permissible subject to
compliance with the procedure. It contemplates obtaining of
"no-objection certificate" from the State Government or UT
Administration and affiliating body concerned. The same
clause also requires submission of the land documents in
original and clearly provides that the same may be a registered
sale deed, irrevocable government lease for a minimum period
of 30 years, etc. by the authority concerned of the Government.
Further, it provides that site plan, building plan for new site
should be prepared by a registered architect and should be
approved by the competent plan sanctioning authority
designated by the State."
as also the time line laid down by the Hon'ble Supreme Court vide paragraph
38 in "Parshavanath Charitable Trust and Ors. Vs. All India Council for
Tech. Edu and Ors." (supra), which reads to the effect:-
Sl. Stage of processing Last date by which the
No. application processing should be
completed.
(1) (2) (3)
1. For receiving proposals by 31st December
Bureau RC.
2. For the Bureau RC to
screen the application and
(a) to return the incomplete
applications to applicants,
and (b) to forward the
applications to (i) State
Government concerned (ii)
University or State Board
concerned, for their
comments (iii) Regional
Officer to arrange visits by
Export Committees, and
(iv) Bureaus MPCD, BOS
and RA for their comments.
3. For receiving the 15th March
comments is from (i) the
State Government (ii) the
University or State Board
and (iii) the Regional
Committee based on the
Expert Committee's report
and (iv) from the Bureaus
MPCD, BOS and RA.
4. For consideration of the 31st March.
comments from the State
Governments, Universities
or State Boards, Regional
Committees, and Bureaus
of the Council by the State
level Committee.
5. For recommendations to be 15th April
made by the Central Task
Force.
6. For communicating the 30th April.
final decision to the State
Government or the
University Grants
Commission, under
limitation to the Regional
office, Director of
Technical Education,
applicant, University or
State Board.
with it having been directed vide paragraph 39 of the said verdict that the
said schedule has statutory backing and its adherence is mandatory and not
directory and the law laid down by the Hon'ble Division Bench of this Court
in LPA No.540/2015 vide paragraph 5 thereof, which reads to the effect:-
"5. In Parshvanath Charitable Trust Vs. AICTE,
(2013) 3 SCC 385 the Supreme Court prescribed the
time schedule and directed that the same shall be
strictly adhered to by all concerned and none of the
authorities shall have the power or jurisdiction to vary
the dates of admission.
Admittedly, the last date for grant of approval by
AICTE has expired long back on 30.04.2015 and,
therefore, the learned Single Judge has rightly
declined to interfere despite the finding of SAC that
there was no deficiency in the application of
Appellant. We, therefore, do not find any justifiable
reason to hold that the order under appeal suffered
from any error warranting interference in an intra
Court appeal.",
it is apparent that the prayer made by the petitioner seeking directions to the
respondent for grant of approval for the "Diploma in Pharmacy" and
"Bachelor of Pharmacy" courses with an intake of 60 and 100 seats
respectively for the academic session 2019-20 and permission to admit
students to start the said courses for the said academic session, cannot be
granted.
27. The petition and the accompanying application are thus, declined.
ANU MALHOTRA, J
AUGUST 09, 2019/NC
