Ham-Ak College Of Pharmacy vs The State Of Assam And 2 Ors
2025 Latest Caselaw 3122 Gua

Gauhati High Court

Ham-Ak College Of Pharmacy vs The State Of Assam And 2 Ors on 13 February, 2025

                                                                Page No.# 1/10

GAHC010128372021




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                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                         Case No. : WP(C)/1998/2020


         HAM-AK COLLEGE OF PHARMACY
         DENTAL AND MEDICAL SCIENCES
         NAGAON
         REP. BY ITS DIRECTOR
         INAMUL HASSAN WHOSE REGD OFFICE IS AT HATIZUZUZA
         NAGAON
         P.O- HATIZUZUZA
         P.S- JAJORI
         DIST- NAGAON
         ASSAM
         PIN- 782001


          VERSUS

         THE STATE OF ASSAM AND 2 ORS
         TO BE REP. BY THE PRINCIPAL SECRETARY TO THE GOVT OF ASSAM
         HEALTH AND FAMILY WELFARE (B) DEPTT
         DISPUR
         GUWAHATI- 06

         2:THE DIRECTOR
          MEDICAL EDUCATION
         ASSAM
          SIX MILE
          KHANAPARA
          GUWAHATI- 22

         3:THE DEPUTY SECRETARY
         TO THE GOVT OF ASSAM
         HEALTH AND FAMILY WELFARE (B) DEPTT
         DISPUR
         GUWAHATI- 06
         ------------
                                                           Page No.# 2/10

Advocate for : MR. K A MAZUMDER
Advocate for : SC
HEALTH appearing for THE STATE OF ASSAM AND 2 ORS



Linked Case : WP(C)/194/2020

HAM-AK COLLEGE OF PHARMACY
DENTAL AND MEDICAL SCIENCES
NAGAON
REP. BY ITS DIRECTOR
INAMUL HASSAN WHOSE REGD. OFFICE IS AT HATIZUZUZA
NAGAON
P.O. HATIZUZUZA
P.S. JAJORI
DIST.- NAGAON
ASSAM


VERSUS

THE STATE OF ASSAM AND 2 ORS.
TO BE REP. BY THE PRINCIPAL SECY. TO THE GOVT. OF ASSAM
HEALTH AND FAMILY WELFARE (B) DEPTT.
DIPSUR
GHY-06

2:THE DIRECTOR
MEDICAL EDUCATION
ASSAM
 SIX MILE
 KHANAPARA
 GHY-22

3:THE DY. SECY. TO THE GOVT. OF ASSAM
HEALTH AND FAMILY WELFARE (B) DEPTT.
DISPUR
GHY-06
------------
Advocate for : MR. K A MAZUMDER
Advocate for : SC
HEALTH appearing for THE STATE OF ASSAM AND 2 ORS.



Linked Case : WP(C)/5287/2023
                                                     Page No.# 3/10

HAM-AK COLLEGE OF PHARMACY
DENTAL AND MEDICAL SCIENCE
REPRESENTED BY ITS DIRECTOR
INAMUL HUSSAIN (AGED ABOUT 37 YEARS)
HAM-AK COLLEGE OF PHARMACY
DENTAL AND MEDICAL SCIENCE
NOGAON
ASSAM.


VERSUS

THE STATE OF ASSAM AND 2 ORS
TO BE REPRESENTED BY THE PRINCIPAL SECRETARY

HEALTH AND FAMILY WELFARE DEPARTMENT

DISPUR
GUWAHATI-06.

2:THE DIRECTOR OF MEDICAL EDUCATION
ASSAM
SIX MILE
 KHANAPARA
 GUWAHATI-32.

 3:THE PHARMACY COUNCIL OF INDIA
(A STATUTORY BODY WORKING UNDER THE MINISTRY OF HEALTH AND
FAMILY WELFARE
 GOVT. OF INDIA
 NEW DELHI
 PIN- 110002)
REPRESENTED BY ITS REGISTRAR CUM SECRETARY

P.C.I.
 NBCC CENTRE 3RD FLOOR PLOT NO. 2

COMMUNITY CENTRE MAA ANANDAMAI MARG
OKHLA PHASE-I
NEW DELHI- 110020.
------------
Advocate for : MR. K A MAZUMDER
Advocate for : SC
HEALTH appearing for THE STATE OF ASSAM AND 2 ORS



Linked Case : WP(C)/1012/2022
                                                      Page No.# 4/10


HAMA-AK COLLEGE OF PHARMACY
DENTAL AND MEDICAL SCIENCES
NAGAON
REPRESENTED BY ITS DIRECTOR MR. INAMUL HASSAN
R/O HATIZUZUA
NAGAON
P.O.-HATIZUZUA
P.S.-JAJORI
DIST-NAGAON
ASSAM
PIN-782001


VERSUS

THE STATE OF ASSAM AND 3 ORS
TO BE REPRESENTED BY THE PRINCIPAL SECRETARY TOT HE GOVT. OF
ASSAM
HEALTH AND FAMILY WELFARE (B) DEPT.
DISPUR
GUWAHATI-06

2:THE SPECIAL SECRETARY HEALTH AND FAMILY WELFARE DEPARTMENT
DISPUR
 GUWAHATI-6
ASSAM

3:THE DIRECTOR MEDICAL EDUCATION ASSAM
SIX MILE
KHANAPARA
GHY-22

4:THE DEPUTY SECRETARY TO THE GOVT. OF ASSAM
HEALTH AND FAMILY WELFARE DEPARTMENT
DISPUR
GUWAHATI-6
------------
Advocate for : MR. K A MAZUMDER
Advocate for : SC
HEALTH appearing for THE STATE OF ASSAM AND 3 ORS
                                                                           Page No.# 5/10



                                     BEFORE
                    HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY

                                       ORDER

Date : 13.02.2025

1. Heard Mr. K.A.Mazumder, learned counsel for the petitioners and Mr. B. Gogoi, learned Standing counsel, Health & Family Welfare Department, Assam for the respondents.

2. These writ petitions are taken up together as the issues arise out of the same cause of action at different stages.

3. WP(C) No. 194/2020 is filed by the petitioner Ham Ak College of Pharmacy, Dental and Medical Sciences assailing an order dated 09.12.2019 whereby the Deputy Secretary to the Government of Assam, Health and Family Welfare Department directed for a review inspection of the petitioner's institution with two members i.e., Dr. N. Sharma, Deputy Director of Medical Education as Chairman and Dr. (Smt.) S. Das, Head of Institute of Pharmacy, Guwahati as Member.

4. Such decision was primarily challenged on the ground that prior to that a committee had already inspected the pharmacy institution belonging to the petitioner and recommended for the required NOC.

5. From the impugned order, it is seen that the report of earlier inspection committee was refused to be accepted by the Government in the Health and Family Welfare Department for the reason that by order dated 09.10.2017, the State Government constituted a committee to carry out inspection in the petitioner's college for starting B.Pharma and D. Pharma courses. However, without consent of the Government, another committee was constituted, which carried out the inspection.

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6. In the considered opinion of this Court, such decision of the Government not to accept the report of the committee which was not constituted by it, cannot be said to be arbitrary exercise of its power.

7. WP(C) 1998/2020 was filed by the petitioner assailing an order dated 03.02.2020 whereby on the basis of the inspection report carried out by the inspection team in terms of the decision dated 09.12.2019 (under challenge in WP© No. 194/2020), the State refused to grant 'No Objection Certificate' (NOC) for the reason that as per the said inspection report, the required infrastructure in the proposed institution are grossly incomplete.

8. During the pendency of said WP(C) No. 1998/2020, a Co-ordinate Bench under its order dated 09.02.2021 while asking the respondents to produce the earlier report under seal cover before the Court, directed the Inspection Committee to re-visit the petitioner college and the petitioner was directed to place all the relevant documents including the land documents, society registration etc. in original before the said committee and to co-operate with the said inspection team during its inspection of the college.

9. Subsequent to the said order dated 09.02.2021, an inspection was carried out and the report was submitted by the Director of Medical Education, Assam on 20.03.2023. In the aforesaid report, an opinion was also expressed that the petitioner's college is not entitled for any NOC.

10. Such report is put under challenge by the petitioner in WP(C) No. 5287/2023.

The Inspection Committee in its report pointed out the deficiencies which are as follows:-

Page No.# 7/10

(i) Deficiency in qualified faculty members as per the Pharmacy Council of India (PCI) norms,

(ii) Inadequate infrastructure/facilities for starting B.Pharm & D.Pharm courses as per PCI norms and

(iii) Inadequate books and journals for starting B.Pharm & D.Pharm courses as per PCI norms.

11. Accordingly, it was opined by the Director of Medical Education, Assam that NOC cannot be granted to the petitioner college for starting B.Pharm & D.Pharm courses as applied for.

12. Prior to that WP(C) No. 1012/2022 is filed challenging a Speaking order dated 29.10.2020 whereby the Special Secretary, Health and Family Welfare Department, on the basis of the report dated 29.07.2019 submitted by the Inspection Committee, held that the petitioner institution does not meet the requirements for conducting B.Pharm & D.Pharm courses and the institute had made a false claim for starting the courses.

13. Mr. Mazumder, learned counsel for the petitioner fundamentally argues that the State is having no sanction and authority under law to insist upon an NOC on to carry out inspection for the purpose of such NOC inasmuch as the Pharmacy Act, 1948 and the regulation framed thereunder prescribes the conditions and procedures for grant of permission to start such courses. Therefore, such action of the State amounts to an act without jurisdiction and such act is redundant, in view of the fact, the subject is already occupied by a Central Legislation i.e., Pharmacy Act, 1948.

14. In support of such contentions, Mr. Mazumder, learned counsel for Page No.# 8/10

the petitioner relies on the decisions of the Hon'ble Apex Court made in the cases of Thirumuruga Kirupananda Variyarthavathiru Sundara Swamigalme vs. State of Tamil Nadu & ors reported in 1996 SCC (3) 15, Viit Pharmacy College & Anr vs. Dr. A.P.J. Abdul Kalam Technical University and Another reported in AIR 2021 SUPREME COURT 1910 and State of Maharashtra vs. Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya & ors reported in (2006) 9 SCC 1.

15. Par contra, Mr. Gogoi, learned Standing counsel, health and family welfare Department argues that it cannot be said that the State without jurisdiction, insisted on NOC inasmuch as the regulation framed by the Pharmacy Council of India in exercise of power under Section 10 of the Act itself prescribes for grant of NOC by the State and the affiliating universities.

16. Mr. Gogoi, learned Standing counsel, health and family welfare Department further contends that the jusrisdiction and authority of the State in insisting upon the NOC is not a challenge in these writ petitions rather, the petitioner's grievance is against the Inspection Committee report and the decision not to grant NOC inasmuch as the petitioner themselves has annexed a document issued by the Pharmacy Council of India along with their writ petitions (WP(C) 1998/2020 Annexure-4) which prescribes that for B.Pharm & D. Pharm courses, consent of affiliation of Examining Authority and NOC/Approval of the State government for starting the aforesaid courses before making admission shall be required. Therefore, in absence of any challenge to the authority of the State in the present batch of these writ petitions, such contention may not be entertained.

17. Referring to a policy decision of the State notified by the State in Page No.# 9/10

the name of the Governor of Assam and published in the Assam Gazette Extra-ordinary dated 08.11.2023 contends that as on date such NOC is required in terms of the policy decision and such policy decision is not under challenge in the present batch of writ petitions.

18. Heard the learned counsels for the parties.

19. This Court has perused the pleadings and it is an admitted position that the entire batch of writ petitions has been structured in a manner that the authorities has wrongly exercised their power and illegally rejected the grant of NOC. It is not the case of the petitioner, so far the same relates to the pleadings, that the State is not having any authority to insist on such NOC, rather the petitioner participated in the entire process of inspection and also insisting upon to rely on the inspection report, which was in its favour to grant NOC. Therefore, in the aforesaid backdrop and context, the arguments advanced by Mr. Mazumder, learned counsel for the petitioner cannot be accepted.

20. Now coming to the judgments relied on by Mr. Mazumder, there is no quarrel on the proposition of law that when a Central Legislation holds the field, such filed cannot be encroached by the State by issuing a notification. However, to determine whether the State is within the power to issue such notification and whether such notification is an encroachment or overlapping of the Central Legislation, it shall require an adjudication and such adjudication can be made only when the policy decision of the State government is under challenge which is not the case herein.

21. Another aspect of the matters is that the inspection committee had inspected and submitted the report on factual aspect. This Court in Page No.# 10/10

exercise of its power of judicial review cannot determine the correctness of such fact. Such deficiencies found by the authorities cannot usually be interfered in exercise of power of judicial review unless and until it is shown on the face of the record that the same is perversed, which is not the case.

22. Accordingly, for the reasons recorded hereinabove, the present batch of writ petitions stand dismissed. However, dismissal of these writ petitions shall not be a bar to the petitioner to assail the Notification dated 07.09.2023, (Regulatory framework of the Nursing, Pharmacy and Allied Health Science Sectors in the State of Assam), if so advised.

23. It is made clear that in the event, petitioner Ham Ak College of Pharmacy, Dental and Medical Sciences, wishes to apply for fresh NOC in terms of the policy decision notified in the Assam Gazette Extra-ordinary dated 08.11.2023, the State shall consider such prayer of the petitioner in terms of the said notification.

JUDGE

Comparing Assistant