Gauhati High Court
Page No.# 1/25 vs The Commissioner And Secretary on 14 May, 2025
Author: K.R. Surana
Bench: Kalyan Rai Surana, Malasri Nandi
Page No.# 1/25
GAHC010030682025
2025:GAU-AS:5933
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WA/48/2025
EDUCATION RESEARCH AND DEVELOPMENT FOUNDATION
A REGISTERED TRUST HAVING ITS OFFICE AT ERDF BHAWAN, LALMATI
ROAD, BHETAPARA, GUWAHATI 781028. REPRESENTED BY ITS FOUNDER
TRUSTEE AZMOL HUSSAIN BARBHUIYA,
2: AZMOL HUSSAIN BARBHUIYA
S/O SIDDEQUE ALI BARBHUIYA
RESIDENT OF FLOWER LANE
NEAR LITTLE FLOWER SCHOOL
HATIGAON
GUWAHATI 38
KAMRUP M ASSA
VERSUS
THE COMMISSIONER AND SECRETARY
TO THE GOVT. OF ASSAM, MEDICAL EDUCATION AND RESEARCH
DEPARTMENT, DISPUR GUWAHATI 06
2:THE DIRECTOR OF MEDICAL EDUCATION
ASSAM
SIX MILE KHANAPARA GUWAHATI 22
3:THE STATE OF ASSAM
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
OF ASSAM
HEALTH AND FAMILY WELFARE DEPARTMENT
DISPUR GUWAHATI 06
4:THE PRINCIPAL SECRETARY
TO THE GOVT. OF ASSAM
Page No.# 2/25
HEALTH AND FAMILY WELFARE DEPARTMENT
DISPUR GUWAHATI 06
5:SRIMANTA SANKARADEVA UNIVERSITY OF HEALTH SCIENCES
NARAKASUR HILLTOP BHANGAGARH
GUWAHATI 781032. REPRESENTED BY ITS REGISTRAR
6:THE PHARMACY COUNCIL OF INDIA
NBCC CENTRE
3RD FLOOR
PLOT NO. 2
COMMUNITY CENTRE
MAA ANANDAMAI OKHLA PHASEI I NEW DELHI 1100020.
7:THE JOINT SECRETARY
HIGHER EDUCATION DEPARTMENT
DISPUR GUWAHAT
BEFORE
HON'BLE MR. JUSTICE KALYAN RAI SURANA
HON'BLE MRS. JUSTICE MALASRI NANDI
For the appellants : Mr. V. Hansaria, Senior Advocate.
: Mr. M.K. Choudhury, Senior Advocate.
: Mr. M.J. Quadir, Advocate.
For the State respondents : Mr. D. Saikia, Advocate General.
: Mr. D.P. Borah, Standing Counsel.
Date of hearing : 28.03.2025, 22.04.2025.
Date of judgment : 14.05.2025.
Page No.# 3/25
JUDGMENT AND ORDER
(CAV)
Sl. Particulars of Index Paragraphs
1. Preliminaries 1-2
2 Case of the appellants in WP(C) 388/2024 and 3 - 14
affidavits-in-reply.
3. Stand of the respondent no. 4 in its affidavit-in- 15
opposition in WP(C) 388/2024.
4. Stand of the respondent no. 3 in the affidavit-in- 16
opposition in WP(C) 388/2024.
5. Reasons and decision by the learned Single Judge 17
in WP(C) 388/2024.
6. Case of the respondent nos. 1 and 2 in Review 18-19
Pet. 208/2024.
7. Reasons and decision by the learned Single Judge 20
in Review Pet. 208/2024.
8. Contention of the learned senior counsel for the 21-36
appellants in support of this Intra-Court appeal
9. Reasons and decisions 37-57
(K.R. Surana, J)
Heard Mr. Vijay Hansaria and Mr. M.K. Choudhury, learned senior
counsel, assisted by Mr. M.J. Quadir, learned counsel for the appellants as well
as Mr. D. Saikia, learned Advocate General, assisted by Mr. D.P. Borah, learned
standing counsel for the Health Department, representing respondent nos. 1 to
5 and 7.
2) By this Intra-Court appeal, the appellants, who were the (i) writ
petitioners in W.P.(C) No. 7132/2022; and (ii) respondent nos. 1 and 2 in Review
Petition 208/2024, have assailed the order dated 06.02.2025, passed by the
learned Single Judge in Review Pet. 208/2024, by which the said review petition
filed by the respondent nos. 1 and 2 was allowed.
Case of the appellants, in brief, in the writ petition and affidavits- in- reply:
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3) The appellant no.1 (i.e. petitioner no.1 in the writ petition) is a
registered Trust, having its office in Guwahati. The appellant no. 2 is the
founder trustee of appellant no. 1, who is representing the appellant no.1.
4) In brief, the case of the appellants in the W.P.(C) 388/2024 was
that the appellants had set up "Allama T.R. College of Pharmacy" at Badarpur in
the district of Karimganj (now District Sribhumi) in the year 2019.
5) Upon an application made, the Pharmacy Council of India had
granted approval to conduct First Year Diploma in Pharmacy (D. Pharm. for
short) and Bachelor in Pharmacy (B. Pharm. for short) for academic session
2021 for 60 seats each. Then, vide letter dated 17.08.2020, the Srimanta
Sankardeva University of Health Sciences, Guwahati (SSUHS for short) granted
temporary affiliation to the said Allama T.R. College of Pharmacy, Badarpur for
D. Pharm. and B. Pharm. course for 60 seats each. Thereafter, vide letter dated
24.03.2021, the SSUHS granted approval for increasing the seats for D. Pharm.
and B. Pharm. course from 60 seats to 100 seats each for the academic session
2021-2022, subject to grant of permission by the Pharmacy Council of India and
accordingly, 100 students have been enrolled in both the academic stream.
6) On 19.11.2019, the appellants had applied for issuance of a no-
objection from the State Government, which was pending. The Director of
Medical Education, Assam (respondent no.2), vide letter dated 07.04.2021,
forwarded the said application to the Principal Secretary to the Govt. of Assam,
Health and Family Welfare Department, wherein it was stated that vide letter
dated 30.01.2021, the Government had imposed moratorium in opening/
starting new Pharmacy institute temporarily till a new regulatory framework for
pharmacy education in the State. In the said regard, the appellants have
projected that the said moratorium would not apply for them because their
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college was an existing pharmacy college that was established prior to the year
2020. The appellants had projected that in the meanwhile the Pharmacy Council
of India, vide letter dated 16.08.2021, had granted approval to the Allama T.R.
College of Pharmacy, Badarpur to conduct 2 nd year B. Pharm. course for session
2021-22 and allowed student intake capacity from 60 to 100 seats in the 1 st
year B. Pharm. Course for academic session 2021-22.
7) In the meanwhile, on an application made by the appellants,
though a 3 (three) member Inspection Team had been constituted by the
Director, Medical Education, Assam vide order dated 16.08.2021, the appellants
had approached this Court by filing W.P.(C) 7132/2022. In the said writ petition,
the Commissioner and Secretary to the Govt. of Assam, Health and Family
Welfare Department had filed an additional affidavit, and produced an
inspection report dated 21.02.2022, showing certain deficiencies. In this regard,
the learned senior counsel for the appellants had submitted that as per Clause
XIII of the notification dated 07.11.2023, the appellant had two years' time till
06.11.2025 to take remedial measures.
8) Be that as it may, during the pendency of W.P.(C) 7132/2022,
the Pharmacy Council of India vide communication dated 30.05.2023, had
granted approval to the appellants pharmacy institute for the academic session
2022-23 and 2023-24. Thereafter, by order dated 22.06.2023, passed in W.P.(C)
7132/2022, the respondent authorities were directed to consider issuing NOC to
the appellants college, subject to the condition that the college would cooperate
by giving information for any requirements made by the authorities in the
Health Department by maintaining parity with other four institutions that had
been granted NOC for 2022-23 onwards within two weeks. It was stated that
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though the Inspection Committee had recommended issuance of NOC to the
appellants' college, but no decision was taken. Accordingly, this Court by order
dated 29.08.2023, directed the State Government to inform the Court about
decision regarding NOC in view of report dated 14.08.2023, taking into account
whether the lacunae of the appellants' college were more or less than the
lacunae that existed in four other colleges when they were granted NOC.
Thereafter, vide order dated 07.09.2023, the said W.P.(C) 7132/2022 was
disposed of by directing the appellants to approach the Commissioner and
Secretary to the Government of Assam, Medical Education and Research
Department to have precise information as to what is required to be done and
on getting the information, to do the necessary modification in the building and
on completion of the same, make representation before the said authority for
inspection and the said authority was directed to pass a reasonable order within
a period of seven days from such communication after modification was done.
9) The appellants have projected that on 08.09.2023, the works
pertaining to rectification of lacunae that was pointed out in the inspection
report dated 14.08.2023, were completed. On the same day, the appellants had
also forwarded a copy of the order dated 07.09.2023, passed by the learned
Single Judge in W.P.(C) 7132/2023, by which the respondent authorities were
informed that the laboratory space had been upgraded by using the additional
space.
10) By another communication dated 15.09.2023, the Chairman of
appellant no.1 had informed the authorities about all compliances and also
provided video of the new structure. However, till 18.09.2023, nothing was
done. In the meanwhile, contempt petition was filed by the appellants.
Thereafter, the inspection team had conducted their inspection on 09.10.2023.
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However, on 17.11.2023, the State Government had issued a notification
regarding Regulatory framework of the Nursing, Pharmacy and allied Health
Science Sectors in the State of Assam for opening new Nursing/ Pharmacy/Allied
Health Science courses in the State.
11) By another notification dated 07.11.2023, the Medical Education
and Research Department regretted its inability to grant permission in respect of
the appellants for issuance of NOC for session 2023-24, amongst others, on the
ground that the Government of Assam, Medical Education and Research
Department, by order dated 31.01.2021, had imposed a moratorium on the
opening of new pharmacy institute temporarily till a new regulatory framework
for pharmacy education is notified in the State and that all applications of
pharmacy courses under private universities would have to be made afresh in
compliance of norms in the regulatory framework.
12) The case of the appellants is that all other pharmacy colleges
and/or institutes in the State were issued NOC to continue with the Pharmacy
courses, but the NOC was denied to the appellants. Accordingly, by filing W.P.(C)
388/2024, the appellants had, inter alia, prayed for setting aside the notification
dated 17.11.2023, by which NOC was denied to the appellants and for a
direction to the Commissioner and Secretary to the Government of Assam,
Medical Education and Research Department (respondent no.1) to issue NOC to
Allama T.R. College of Pharmacy for the session 2022-23 and to permit the
appellants/ institute to conduct D. Pharm. and B. Pharm. courses without any
hindrance whatsoever.
13) Accordingly, by alleging violation of fundamental rights under
Article 19(1)(g) and Article 14 of the Constitution of India, the appellants had,
amongst others, prayed for quashing notification dated 17.11.2023, by which
Page No.# 8/25
NOC to the appellants was rejected; and for directing the respondents,
particularly, the Commissioner and Secretary to the Govt. of Assam, Medical
Education and Health Department (respondent no. 1 herein) to issue NOC to the
pharmacy institute of the appellants.
14) In brief, the stand of the appellants in their affidavits -in- reply
was to the effect that its pharmacy college was an existing institution and
therefore, the new guidelines would not apply to them, but were applicable to
only new institutes which were established after the said notification dated
07.11.2023 was issued. It was also the stand of the appellants that issuance of
NOC was rejected with mala fide intention and was discriminatory against them.
Stand, in brief, of the respondent no. 4 (respondent no.2 in this appeal) in its
affidavit-in-opposition:
15) The Director of Medical Education, Assam (arrayed as respondent
no. 4 in the writ petition, and the respondent no.2 in this appeal) had filed its
affidavit-in-opposition and it was stated that deficiencies in meeting the
Pharmacy Council of India were found in five pharmacy institutes, but as the
case of the appellants was sub judice before this Court, the case of the
appellants, for grant of NOC, could not be considered. In the meantime, the
Govt. of Assam had issued notification no. MER.206054/786 dated 07.11.2023,
regarding regulatory framework in respect of the Nursing, Pharmacy and Allied
Health Science sector, owing to which the Govt. had expressed its inability to
consider issuance of NOC to the appellants. It was also stated that the Allama
T.R. College of Pharmacy, Badarpur was established in the year 2019, without
obtaining the NOC from the Government, and the Government had granted
conditional NOC for the session 2020-21 and 2021-22. Moreover, it was stated
that NOC to other four pharmacy institutes were issued after inspection.
Page No.# 9/25
Stand of the respondent no. 3 (respondent no.1 in this appeal), in brief, in its
affidavit-in-opposition:
16) The Commissioner and Secretary to the Govt. of Assam, Medical
Education and Health Department (arrayed as respondent no. 3 in the writ
petition and respondent no. 1 in this appeal), had filed its affidavit-in-opposition
and stated that a meeting was held on 25.06.2024, under the Chairmanship of
the Chief Minister of the State wherein it was decided that the Government
would enact a new Act or circular to streamline the process of issuance of NOC
to private institutes and in that view of the matter, the EOI application
submitted by the appellants' institution was under process in the Medical
Education and Research Department.
Reasons and decision by the learned Single Judge in W.P.(C) 388/2024:
17) After an elaborate discussion of the materials available on record
and upon considering the submissions made on behalf of the parties, the
learned Single Judge vide judgment and order dated 16.08.2024, disposed of
the writ petition bearing W.P.(C) 388/2024, by directing the Commissioner and
Secretary to the Govt. of Assam, Medical Education and Health Department to
re-visit the Inspection Report dated 20.10.2023, by also taking into account that
the appellants college had fulfilled the required infrastructure/ facilities to start
degree and diploma courses and the appellants' college had also submitted an
Expression of Interest, and thereafter to take steps forthwith for issuance of
NOC to the appellants college and permit the institute to conduct courses of D.
Pharm. and B. Pharm. without any further hindrance.
Stand of the respondent nos. 1 and 2 before the learned Single Judge in Review
Pet. 208/2024:
Page No.# 10/25
18) The respondent nos. 1 and 2 in this appeal were arrayed as the
respondent nos. 3 and 4 in W.P.(C) 388/2024. Amongst other grounds, one of
the grounds in the review petition by the respondent nos. 1 and 2 was that
though in paragraph 12 of the judgment, the learned Single Judge had taken
note of their two stand, nevertheless, in paragraph 21 of the judgment, issued a
direction to the said respondents to re-visit the inspection report dated
20.10.2023 and by taking into account that the appellants' college had fulfilled
the required infrastructure, take steps for issuance of NOC for conducting D.
Pharm. and B. Pharm. courses. Therefore, prayer for review was made in
respect of directions contained in paragraph 21 of the said judgment and order
dated 16.08.2024.
19) The relevant paragraphs 12 and 19 to 21 of the judgment and
order dated 16.08.2024, passed by the learned Single Judge are quoted below
for ready reference:-
"12. Mr. D.P. Borah, learned Standing counsel, Health Department, submits that the
petitioner's college, without obtaining NOC from the Government, had stared the
Academic Session 2020-2021 and 2021-2022 and therefore, considering the career
of the admitted students, the Government in the Medical Education and Research
Department issued NOC to the petitioner's college for the Session 2020-2021 and
2021-2022 by the Communication dated 03.06.2022. He also submits that as the
Government in the Medical Education and Research Department, Assam had
already imposed a moratorium for opening of new pharmacy institutes by the
Order dated 31.01.2021, the NOC
could not be issued to the petitioner's college. The learned standing counsel,
Health Department also submits that the authorities in the Medical Education and
Research Department had already issued a New Regulatory Framework forNursing,
Pharmacy and Allied Health Science by Notification dated 07.11.2023 and
therefore, under the New Regulatory Framework all applications of Pharmacy
Courses under Private Universities would have to apply afresh in compliance of
norms given in the Regulatory Framework. Therefore, the respondents were not in
a position to issue NOC to the petitioner's college and instead instructed the
petitioner's college to submit a fresh Expression of Interest. He also submits that
Page No.# 11/25
the petitioner's college has submitted the Expression of Interest through the
Director of Medical Education, Assam which is under process at the Government
level. Further submission is made that Memorandum of Understanding signed
between Karimganj Civil Hospital, Karimganj and the petitioner's college has been
cancelled with immediate effect by a Communication dated 11th July, 2024 written
by the Director of Health Service, Assam and addressed to the Joint Director,
Health Service, Karimganj and the Superintendent, Karimganj Civil Hospital,
Karimganj. Therefore, under such circumstances, the petitioner's college cannot be
granted NOC until they fulfill all the norms prescribed in terms of the New
Regulatory Framework of Nursing, Pharmacy and Allied Health Science Sectors in
the State of Assam which has been notified by the Notification dated 07.11.2023.
* * *
19. Another point of note is that when the Order dated 31.01.2021 was in force,
the respondent No. 4, by the Communication dated 20th February, 2023, had
issued NOC to one NEF College of Pharmaceutical and Research, Jail Road, Nagaon
for the Session 2022-2023 onwards. The said college was also granted NOC by
Commutation 25.2.2022 containing the same terms and conditions thatwas given
to the petitioner's college when the NOC was granted for the Session 2020-2021
and 2021-2022 by Communication dated 3rd June, 2022. Therefore, when the said
NEF College of Pharmaceutical and Research, Jail Road, Nagaon could be given
NOC for the Session 2022-2023 onwards despite the moratorium being in force
through the Order dated 31.01.2021, the objections of the respondents for
issuance of NOC to the petitioner's college on the ground that there is a
moratorium imposed by the Order dated 31.01.2021 is found to be arbitrary.
20. This Court has also taken into consideration the submission of the learned
Standing counsel, Health Department that the petitioner's institution has already
submitted afresh expression of interest before the respondents which is under
consideration at the Government level.
21. In view of the discussions made hereinabove, this writ petition is disposed of
directing the respondent No. 3 to re-visit the Inspection Report dated 20.10.2023
by also taking into account that the petitioner's college has fulfilled all the required
infrastructure/ facilities to start Degree and Diploma courses and the petitioner's
college has also submitted the Expression of Interest and thereafter take steps
forthwith for issuance of NOC to the petitioner's college and permit the institute to
conduct courses of D. Pharm and B. Pharm without any further hindrance."
Reasons and decision in Review Pet. 208/2024:
Page No.# 12/25
20) The learned Single Judge had considered the materials available
on record after considering the submissions on behalf of the appearing parties,
was of the considered opinion that the Court, having taken into consideration
that the Memorandum of Understanding between the appellants' college and
the Karimganj Civil Hospital, Karimganj was cancelled on 11.07.2024, which was
reflected in paragraph 21 of the said judgment and order dated 16.08.2024,
held that it appears that the Court had made an apparent error on the face of
record inasmuch as the same was not taken into account while passing the
directions contained in paragraph 21 of the said judgment and order.
Accordingly, paragraph 21 of the said judgment and order dated 16.08.2024
was re-cast. It may be mentioned that although in paragraph 9 of the said
review order dated 06.02.2025, it has been specifically mentioned that
paragraph 21 of the judgment and order dated 16.08.2024, passed in W.P.(C)
388/2024 has been re-cast, but due to a clerical error, paragraph-21 has
inadvertently been numbered as paragraph 12, which is a mistake that is
apparent on the record. The re-cast paragraph 12 (sic. ought to be 21) is as
under:-
9. Accordingly, this Court is of the considered opinion that the review petitioners
have made out a case for review of the directions passed in Para - 21 of the
Judgment and Order dated 16.08.2024 passed in WP(C)/388/2024. Accordingly,
the Para - 21 of the Judgment and Order dated 16.08.2024 passed in
WP(C)/388/2024 is modified as under:-
"21. In view of the discussions made hereinabove the petitioners are directed
to go for a renewal of the Memorandum of Understanding and/or apply fresh
before the Concerned Authorities within a period of 1 (one) week from today.
In the event, the petitioners applies for renewal or make a fresh application
for having a MoU, the Concerned Authorities shall ensure that steps are taken
and completed within a period of 2 (two) weeks from the date of application
for renewal or making a fresh application. Thereafter, the respondent No. 3
shall re-visit the Inspection Report dated 20.10.2023 by taking into
consideration that the Petitioner's College has fulfilled all the required
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infrastructures and facilities to start the Degree and Diploma courses.
However, the issuance of NOC shall be subject to the production of
Memorandum of Understanding signed between the Petitioner's College and
any other Hospitals as specified in the Notification dated 07.11.2023 ."
Contention of the learned senior counsel for the appellants in support of this
Intra-Court appeal:
21) Referring to the grounds set forth for this Intra-Court appeal, the
learned senior counsel for the appellants have submitted that review of a
judgment is permissible to correct clerical and arithmetical errors, but the Court
had no power to entirely substitute its effective order, which is prejudice to
and/or detrimental to the interest of the appellants.
22) It was submitted that the learned Single Judge had erred in
passing the review order, because the review order has been passed on the
premise that a MoU with a Government hospital is a necessary requirement for
grant of NOC by the State. It was submitted that neither under the Regulations/
notifications issued by the Pharmacy Council of India or under the State
Government notification dated 07.11.2023, there is any necessity for an existing
Pharmacy Institute to have a MOU with a Government hospital.
23) It was submitted that the Pharmacy Council of India is the
statutory and regulatory body under the Pharmacy Act, 1948 to lay down the
standard of education for establishing and continuing pharmacy courses and the
Approval Process Handbook of the said council does not require any MOU with
Government Hospital to impart D. Pharm. and B. Pharm. courses. The said MOU
is envisaged only to impart Pharm.D. Course (Doctor of Pharmacy). It was
submitted that the said factor was not considered by the learned Single Judge.
Moreover, it was submitted that the regulatory notification dated 07.11.2024
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was contrary to the regulation of the Pharmacy Council of India and therefore,
the said notification was ultra vires the Pharmacy Council of India regulations
and notifications in force.
24) It was further submitted that the only reason assigned by the
Director of Medical Education in his affidavit-in-opposition for not issuing NOC
was that the matter was sub judice before this Court. Moreover, the
Commissioner and Secretary to the Govt. of Assam, Medical Education and
Research Department, had categorically stated in his affidavit-in-opposition that
in view of Govt. decision taken in meeting dated 25.06.2024, wherein it has
been decided that the Government would enact a new Act/Circular in order to
streamline the process of issue of NOC to the private institutes, the EOI
application submitted by the appellants' institution is under process in the
Medical Education and Research Department. Thus, it was submitted that the
requirement of MOU was never mentioned by the respondent nos. 1 and 2 in
this appeal.
25) It was also submitted that the learned Single Judge had failed to
consider that the purported cancellation of MOU was not pleaded by the State
respondents in their affidavit filed in the writ proceeding and therefore, the
reliance on such a statement to upset the decision of the writ petition in
exercise of review jurisdiction is not sustainable.
26) It was submitted that Clause XIII of the notification dated
07.11.2023 was applicable only for new pharmacy institute and therefore, could
not have been applied for an existing pharmacy institute of the appellants.
Moreover, it was submitted that the two year period envisaged under the said
notification dated 07.11.2023 would expire only on 06.11.2025 since it is an
existing pharmacy institution/ college.
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27) It was also submitted that the cancellation of MOU of the
appellants with the Karimganj Civil Hospital was mala fide because there was no
requirement of any prior approval to be taken by the Superintendent of the said
hospital and that the Superintendent had the authority to do so.
28) It was submitted that in the communication dated 12.07.2019, it
was mentioned that there was a moratorium for opening a new pharmacy
college for a period of five years beginning from the year 2020-21. However, it
was submitted that the said moratorium was not applicable for North-Eastern
States, where there was a shortage of pharmacy colleges.
29) Accordingly, it was submitted that the order dated 06.02.2025,
passed in the review petition was not sustainable on facts and in law and was
liable to be interfered with. The learned senior counsel for the appellants had
also prayed for interim relief.
30) Moreover, in support of his submissions, the learned senior
counsel for the appellants had placed reliance on the case of Pharmacy Council
of India v. Dr. S.K. Toshniwal Educational Trusts Vidharbha Institute of
Pharmacy & Ors., (2021) 10 SCC 657 (para-3 and 15).
Submissions by the learned Advocate General:
31) Per contra, the learned Advocate General has submitted that the
Medical Education and Research Department, Government of Assam had issued
notification no. MER.206054/786 dated 07.11.2023, amongst others, prescribing
under Clause XIII thereof that the existing Govt. and Private Nursing/ Pharmacy
/Allied Health Science Institutions in Assam having obtained NOC from the Govt.
would have to ensure full compliance of the conditions and/.or requirement
contained therein. It has been submitted that the appellants have challenged
Page No.# 16/25
the said notification dated 11.07.2023.
32) Moreover, it has been submitted that though the appellants are
contending that the State Government did not have the power to issue any
notification which operates contrary to the Regulations and notifications issued
by the Pharmacy Council of India, however, under paragraph 4(i) of the
"Approval process for academic year 2024-25 for all pharmacy institutions", vide
letter dated 14.12.2023, issued by the Pharmacy Council of India, even the
existing Pharmacy Institutions/ College were required to obtain NOC from the
State Government for B. Pharm Course and for D. Pharm/ Pharm.D and
Pharm.D course, even the existing Pharmacy Institutions/ College were required
to have MOU with 300 bedded hospital in the prescribed format.
33) It was also submitted that the letter dated 03.06.2022, by the
Medical Education and Research Department, Govt. of Assam, by which no-
objection for admitted batches of 2020-21 and 2021-22, was issued, was
conditional it contained a direction that no admission would be made for session
2022-23, without permission from the Government. Further, by the said letter, it
was also made clear that non-compliance of that order may invite cancellation
of the said NOC. It was also submitted that by the said letter, the appellants
were informed that the NOC did not amount to grant of permission for starting
college/ course or for admissions, which will be granted as prescribed by the
Regulatory Body/SSUHS.
34) It was also submitted that vide notification No. MER.318490/104
dated 17.11.2023, issued by the Medical Education and Research Department,
Govt. of Assam, it has been mentioned that the appellant no. 1 had admitted
students for the academic sessions 2020-2021 and 2021-2022 without obtaining
Govt. NOC and it was also stated therein that on prayer of the institution and on
Page No.# 17/25
humanitarian ground for future of students already admitted, the Govt. had
issued ex post facto NOC on 03.06.2022 to the institution for academic session
2022-2023 and thereafter no admission was be made without Government
permission for which the appellant no. 1 was required to submit undertaking
and it was made clear that non-compliance of the order shall invite cancellation
of the no-objection. It was also stated in the said notification that the
Government had notified new Regulatory Framework on Nursing, Pharmacy and
Allied Health Sciences in order to steam-line Health Sciences in the State and
that all new and old Government and Private Pharmacy Institutes would now
come under the purview of the Regulatory norms in order to ensure quality
education and would have to apply afresh in compliance of the regulatory norms
given in the regulatory framework. Accordingly, it has further been submitted
that the said notification has also not been assailed by the appellants.
35) It was submitted that vide letter no. HSE/Misc/60/Pt/2023/4589
dated 11.07.2024, the Director of Health Services, Govt. of Assam had written to
(1) the Joint Director of Health Services, Karimganj (now Sribhumi), and (2) the
Superintendent of Karimganj Civil Hospital, Karimganj (now Sribhumi) to the
effect that Allama T.R. College of Pharmacy, Badarpur, District- Karimganj (now
Sribhumi) had signed a MOU with the Superintendent of Karimganj Civil Hospital
without taking NOC/approval of the higher competent authority/Government,
which is in breach of office procedure. Accordingly, in light of Government
notification No. HLA.511715/2 dated 09.07.2024, the said MOU was cancelled
and the said authorities were requested to take necessary steps for cancellation
of MOU from their end. Consequently, vide letter no. 9030 dated 12.07.2024,
the Superintendent of Karimganj Civil Hospital, Karimganj (now Sribhumi) had
had informed the Principal, Allama T.R. College of Pharmacy, Badarpur that the
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MOU signed between Allama T.R. College of Pharmacy, Badarpur, District-
Karimganj (now Sribhumi) and Karimganj Civil Hospital on 12.01.2024 is hereby
cancelled.
36) In connection with the notifications, orders and communications
referred hereinbefore, it was submitted that the same were not under challenge.
Accordingly, it was reiterated by the learned Advocate General that he would
refrain from making any submissions on those in the absence of any challenge.
Reasons and decision:
37) Examined the materials available on the record and also
considered the submissions made by both sides.
38) The only question that arises for determination in this Intra-Court
appeal is:
Whether the impugned order dated 06.02.2025, passed by the learned
Single Judge in Review Pet. 208/2024 is liable to be interfered with?
39) On a perusal of the contents of paragraph 12 of the judgment and
order dated 16.08.2024, passed in W.P.(C) 388/2024. The contents of the said
paragraph are quoted hereinbefore. Having re-read the said paragraph 12, the
learned Single Judge was satisfied that the directions contained in paragraph 21
of the said judgment and order warranted recasting, as error had crept in the
directions contained in paragraph 21. Therefore, in exercise of review
jurisdiction, the learned Single Judge vide impugned order dated 06.02.2025,
passed in Review Pet. 208/2024, had re-cast the directions contained in
paragraph 21 of the judgment and order dated 16.08.2024, passed in W.P.(C)
388/2024.
40) One of the strenuously made submissions of the learned senior
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counsel for the appellants was that in paragraph 12 of the judgment and order
dated 21.05.2024, passed in W.P.(C) 388/2024, the learned Single Judge had
referred to the submissions made by the learned standing counsel for the Health
Department to the effect that by a communication dated 07.11.2024, the MOU
between the Karimganj Civil Hospital, Karimganj (now Sribhumi) and the
appellants' college was cancelled. In the said context, it was submitted that
there was no pleadings in the writ proceeding in that regard and therefore, the
plea having not raised by the State respondents, could not have been made a
basis of reviewing the order. It was submitted that the learned Single Judge
failed to consider that adequate opportunity was not granted to the appellants
to counter the said point.
41) The Court has given an anxious consideration of the said
submission. In the said context, it is seen that in the writ petition, the appellants
had assailed the notification no. MER.318490/104 dated 07.11.2024, by which
the Medical Education and Research Department, Govt. of Assam, had regretted
its inability to grant permission in respect of the respondents for issuance of
NOC for the session 2023-24.
42) This was followed by issuance of letter no.
HSE/Misc./60/Pt./2023/4589 dated 11.07.2024, by the Director of Health
Services, Assam to (1) The Joint Director of Health Services, Karimganj (now
Sribhumi), and (2) The Superintendent of Karimganj Civil Hospital, Karimganj
(now Sribhumi), intimating cancellation of MOU between Allama T.R. College of
Pharmacy, Badarpur and Karimganj Civil Hospital with immediate effect.
According to the learned Advocate General, this was followed Accordingly, in
light of Government notification No. HLA.511715/2 dated 09.07.2024, the said
MOU was cancelled and the said authorities were requested to take necessary
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steps for cancellation of MOU from their end. Consequently, vide letter no. 9030
dated 12.07.2024, the Superintendent of Karimganj Civil Hospital, Karimganj
(now Sribhumi) had had informed the Principal, Allama T.R. College of
Pharmacy, Badarpur that the MOU signed between Allama T.R. College of
Pharmacy, Badarpur, District- Karimganj (now Sribhumi) and Karimganj Civil
Hospital on 12.01.2024 is hereby cancelled.
43) Thus, the said events occurred on 07.11.2024 and 12.07.2024.
However, the hearing of the writ petition were held on 22.07.2024 and
26.07.2024, and the judgment and order in W.P.(C) 388/2024, was passed on
16.08.2024. Thus, from the contents of paragraph 12 of the said judgment and
order, it must be presumed that the said cancellation of MOU was brought to
the notice of the learned Single Judge in course of hearing. It is not the
projected case of the respondent nos. 1 and 2 that the said two
communications bearing no. HSE/Misc./60/Pt./2023/ 4589 dated 11.07.2024 and
no. 9030 dated 12.07.2024, were not served upon them before the writ petition
was heard.
44) Moreover, although the learned Single Judge had referred to the
said subsequent events in paragraph 12 of the judgment and order dated
16.08.2024, the respondent nos. 1 and 2 did not pray for review of the said
order to have the reference to the said two communications expunged from the
order. Therefore, having taken note of the submissions of the learned standing
counsel for the appellants when the writ petition was being heard, the Court is
unable to accept that the respondent nos. 1 and 2 were in any way prejudiced
by the contents of paragraph 12 of the said judgment and order dated
16.08.2024.
45) The learned Single Judge is found to have taken a considered
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decision to the effect that in light of the contents of paragraph 12 of the
judgment and order dated 16.08.2024, in passing the directions contained in
paragraph 21 thereof was an error apparent on the face of the record inasmuch
as the cancellation of the MOU dated 12.01.2024, between Allama T.R. College
of Pharmacy, Badarpur, District- Karimganj (now Sribhumi) and Karimganj Civil
Hospital was not taken into account.
46) The Court, having considered the contents of paragraph 12 of the
judgment and order dated 16.08.2024, is also of the view that the directions
contained in paragraph 21 of the same judgment and order dated 16.08.2024,
would have been inconsistent and therefore, the re-casting of paragraph 21 of
the judgment and order dated 16.08.2024, vide review order dated 06.02.2025,
passed in Review Pet. 208/2024 cannot be faulted with.
47) Once the learned Single Judge has arrived at a conclusion that the
contents of paragraph 21 would operate contrary to the contents of paragraph
12 of the same judgment and order, the Constitutional Court would not be
powerless to correct its own mistake. Rather, it has an inherent power to correct
its mistake, either on its own or on motion made by the respondent nos. 1 and
2 vide Review Pet. 208/2024.
48) In exercise of jurisdiction in an Intra-Court appeal, in this case,
the endeavour of the Court would be limited to examine whether the order
dated 06.02.2024, was perverse, or passed by overlooking the well established
principle of law, or is vitiated by taking into consideration irrelevant materials.
The Intra-Court appellate Bench would not substitute its discretion over the
discretion exercised by the learned Single Judge when the view taken is
otherwise permissible in law.
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49) The learned Advocate General has been able to demonstrate that
under clause XIII of the notification no. MER.206054/786 dated 07.11.2023
prescribed that even an existing Pharmacy/ Allied Health Science Institutions
required to comply with the new norms, for which two years window was
granted. Therefore, the said two year period would expire only on 06.11.2025,
which is yet to come. Therefore, the learned Single Judge, in paragraph no.11
of the judgment and order dated 16.08.2024, passed in W.P.(C) 388/2024, held
the non-granting of NOC to the appellants' college to be illegal and arbitrary.
The said finding has attained finality. Moreover by referring to the approval
granted to the appellants' college for conduct of first year D.Pharm and B.Pharm
courses for 2020-21 academic session and subsequent approval granted for
second year B.Pharm course, it was held in paragraph 16 of the said judgment
and order that the appellants' institution cannot be considered as a new
institution. However, taking note of the contents of paragraph no.12 of the order
dated 16.08.2024, passed in WP(C) 388/2024, modified the direction contained
in paragraph no.21 of the said judgment and order inter alia, directing the
appellants to go for renewal of the MOU and/ or to apply afresh before the
concerned authorities; and concerned respondent authorities were directed to
take steps and to complete the process within 2(two) weeks from the date of
application; further directing the Commissioner & Secretary to the Govt. of
Assam, Medical Education and Research Department to revisit the inspection
report dated 20.10.2023, by taking into consideration that the appellants had
fulfilled all the required infrastructure and facilities to start the Degree and
Diploma courses; however, providing that the issuance of NOC shall be subject
to the production of Memorandum of Understanding signed between the
appellants' college and any other hospitals as specified in the notification dated
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07.11.2023.
50) Therefore, the status of the appellants' college is not found to
have been altered to a new institution by the order dated 06.02.2025, passed in
Review Pet.208/2024. However, by referring to the notification dated
07.11.2023, in the modified paragraph no.21 of the review order, the learned
Single Judge has referred to the notification no. MER.318490/ 104 dated
07.11.2023, wherein it is provided that all new as well as old Government and
Private Pharmacy Institutes would now come under purview of the regulatory
norms in order to ensure quality education.
51) The learned Senior counsel for the appellants had submitted that
under clause 4(ii)(b) of the "Approval Process for Academic 2024-2025 for all
Pharmacy Institutions", MOU with 300 bedded hospital was applicable only for
Pharm.D course and not for any other course like D. Pharm or B.Pharm. Hence,
it was submitted that notwithstanding the cancellation of the MOU between the
college of the appellants and Karimganj Civil Hospital, Badarpur would not stand
in the way of the Government of Assam, Medical Education & Research
Department to issue NOC to the appellants for conducting any course other than
D.Pharm/ Pharm.D and Pharm.D (Post Baccalaureate) course and those other
courses covered clause 4(ii)(b) requiring MOU 300 bedded hospital.
52) As already indicated above, the notification no. MER. 318490/104
dated 07.11.2023, by which the new guideline was made applicable on the
appellants has not been specifically assailed by the appellants. Under such
circumstances, Court has found no material to interfere with the order dated
06.02.2025 passed in Review Pet.208/2024. Accordingly, without expressing any
opinion as to whether vide notification no. MER.318490/104 dated 07.11.2023,
fresh applications in compliance with the regulatory norms could have been
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made applicable to the appellants and whether the cancellation of MOU
between the Allama T.R. College of Pharmacy and Karimganj Civil Hospital,
Badarpur would have any bearing on the requirement of NOC in terms of
"Approval Process for Academic 2024-2025 for all Pharmacy Institutions" NOC
by the State Government, issued by the Pharmacy Council of India can only be
examined if a challenge is made to any guidelines, order or notification, which
according to the appellants, runs counter to the guidelines under "Approval
Process for Academic 2024-2025 for all Pharmacy Institutions" issued by the
Pharmacy Council of India.
53) It has also been demonstrated that vide clause-11 of the letter of
NOC dated 03.06.2022, the respondent no.1 had reserved right of the
Government to imposed any other at any time which shall be binding on the
Institute and moreover, under clause-12 thereof, the Government had reserved
right to withdraw the NOC on failure to comply that the conditions contained
therein.
54) Therefore, the Court is of the considered opinion that the learned
Single Judge having taken into account (a) non-issuance of NOC, and (b)
cancellation of MOU between Allama T.R. College of Pharmacy and Karimganj
Civil Hospital, Badarpur, in paragraph-12 of the judgment and order dated
16.08.2024, passed by the learned Single Judge in W.P.(C) 388/2024, along with
modification paragraph 21 of the said judgment and order, by virtue of Review
order 06.02.2025 passed in Review petition 208/2024 and therefore, the said
directions contained in modified paragraph 21, having attained finality could not
impede the right of the appellants to do the needful in terms of directions
contained in the said modified paragraph 21.
55) However, if according to the appellants, there is no legal or
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statutory requirement by any orders or notifications in force, to conduct any
course in Allama T.R. College of Pharmacy, not requiring any MOU with any
Government Hospital, even without any order of the Court, it would be within
the appellants' right to apply for NOC by clarifying as to which particular
Pharmacy course could not require MOU with a Government Hospital. The State
respondents, on receipt of the application made by the appellants in terms of
paragraph 21 of the judgment and order dated 16.08.2024, passed in W.P.(C)
388/2024, as modified vide order dated 06.02.2025, passed in Review Pet.
208/2024, are bound to take appropriate steps as per the directions contained
in modified paragraph 21, within the time allowed.
56) Under such circumstances, the Court is of the considered opinion
that the impugned order dated 06.02.2025 passed in Review Pet. 208/2024,
does not warrant any interference. Accordingly, this appeal is dismissed without
issuance of notice on the respondents.
57) However, before parting with the records, we make it clear that
nothing contained in this order will prejudice the parties herein in the event the
appellants assail any notification or order, passed by the respondent authorities,
or any action taken during the pendency of the connected writ petition and/or
review petition, as the appellants may be so advised.
JUDGE JUDGE
Comparing Assistant
