Sree Narayana Guru Memorial ... vs The State Of Kerala
2021 Latest Caselaw 7212 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT

          THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

  TUESDAY, THE 02ND DAY OF MARCH 2021 / 11TH PHALGUNA, 1942

                   WP(C).No.28062 OF 2020(G)

PETITIONER:
              SREE NARAYANA GURU MEMORIAL EDUCATIONAL AND
              CULTURAL TRUST
              THIRUMALABHAGOM.P.O,THURAVOOR,
              CHERTHALA,ALAPPUZHA DISTRICT-688540,REPRESENTED
              BY ITS PRESIDENT P.SANKAN,AGED 73
              YEARS,S/O.PURUSHOTHAMAN,RESIDING AT
              CHINGAMTHARAYIL HOUSE,THURAVOOR,
              ALAPPUZHA DISTRICT-688540.

              BY ADV. SRI.ANOOP.V.NAIR

RESPONDENTS:
      1      THE STATE OF KERALA
             REPRESENTED BY SECRETARY,HEALTH AND FAMILY
             WELFARE DEPARTMENT,GOVERNMENT
             SECRETARIAT,THIRUVANANTHAPURAM-695001.

      2       THE KERALA UNIVERSITY OF HEALTH SCIENCE,
              THRISSUR DISTRICT-680596,
              REPRESENTED BY ITS REGISTRAR.

      3       THE DIRECTOR OF MEDICAL EDUCATION,
              OFFICE OF THE DIRECTOR OF MEDICAL
              EDUCATION,THIRUVANANTHAPURAM-695011.

      4       THE REGISTRAR,
              PHARMACY COUNCIL OF INDIA,COMBINED COUNCIL
              BUILDING,KOTLA ROAD,
              NEW DELHI-110002.

      5       THE ALL INDIA COUNCIL FOR TECHNICAL EDUCATION,
              7TH FLOOR,CHANDER LOK BUILDING,
              JANPATH,NEW DELHI-110001,REPRESENTED BY ITS
              CHAIRMAN.

            BY ADV. SHRI.P.VIJAYAKUMAR, ASG OF INDIA
            BY ADV.M.A.ASIF, SPL. GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
02.03.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 W.P.(C)No.28062 of 2020

                                  2

                              JUDGMENT

The petitioner Trust is running Sree Narayana Guru Memorial

Pharmacy College at Valamangalam South, Thuravoor, which is a

Self-Financing College conducting D.Pharm course, with the

approval of the Pharmacy Council of India and the affiliation of the

3rd respondent Director of Medical Education, Kerala. The petitioner

has filed this writ petition under Article 226 of the Constitution of

India, seeking a writ of certiorari to quash Ext.P7 order dated

14.03.2020 of the 1st respondent State, whereby Ext.P3 application

dated 20.08.2019 made by the petitioner for issuance of no-

objection certificate for starting B.Pharm course in that college,

during the academic year 2020-21, stands rejected, for the reasons

stated therein. The petitioner has also sought for a writ of

mandamus commanding the 1st respondent State to consider and

dispose of Ext.P8 application dated 03.12.2020 made by the

petitioner seeking no-objection certificate for starting B.Pharm

course in its college, during the academic year 2021-22, within a

time limit to be fixed by this Court; and a declaration that the

petitioner's college is eligible to get no-objection certificate from

the 1st respondent State, for starting B.Pharm course, during the W.P.(C)No.28062 of 2020

academic year 2021-22.

2. On 16.12.2020, when this writ petition came up for

admission, the learned Government Pleader sought time to get

instructions.

3. A statement dated 15.01.2021 has been filed on behalf

of the 1st respondent State, opposing the reliefs sought for in this

writ petition. The petitioner has filed a reply affidavit dated

20.01.2021.

4. Heard the learned counsel for the petitioner, the learned

Special Government Pleader for respondents 1 and 3 and also the

learned Assistant Solicitor General of India appearing for the 4 th

respondent.

5. The issue that arises for consideration in this writ

petition is as to whether any interference is warranted on Ext.P7

order dated 14.03.2020 of the 1st respondent State, whereby

Ext.P3 application made by the petitioner for grant of no-objection

certificate for starting B.Pharm course in its college, during the

academic year 2020-21, stands rejected.

6. Section 12 of the Pharmacy Act, 1948 deals with

approved courses of study and examinations. As per sub-section

(1) of Section 12, any authority in a State which conducts a course W.P.(C)No.28062 of 2020

of study for pharmacists may apply to the Central Council for

approval of the course, and the Central Council, if satisfied, after

such enquiry as it thinks fit to make, that the said course of study

is in conformity with the Education Regulations, shall declare the

said course of study to be an approved course of study for the

purpose of admission to an approved examination for pharmacists.

7. In exercise of the powers conferred by Sections 10 and

18 of the Pharmacy Act, 1948, the Pharmacy Council of India, with

the approval of the Central Government made the Bachelor of

Pharmacy (B.Pharm) Course Regulations, 2014. As per Regulation

3, the duration of B.Pharm course shall be four academic years

(annual/semester) full time with each academic year spread over a

period of not less than two hundred working days for annual

pattern and hundred working days for each semester. As per sub-

regulation (1) of Regulation 9, no person, institution, society, trust

or university shall start and conduct B.Pharm programme without

the prior approval of the Pharmacy Council of India.

8. As per sub-regulation (2) of Regulation 9 of the Course

Regulations, 2014, any person or pharmacy college for the purpose

of obtaining permission under sub-section (1) of section 12 of the W.P.(C)No.28062 of 2020

Pharmacy Act, shall submit a scheme as may be prescribed by the

Pharmacy Council of India. As per clause (3) of Regulation 9, the

scheme referred to in sub-regulation (2) above, shall be in such

form and contain such particulars and be preferred in such manner

and be accompanied with such fee as may be prescribed. As per the

proviso to Regulation 9, the Pharmacy Council of India shall not

approve any institution under these regulations unless it provides

adequate arrangements for teaching in regard to building,

accommodation, labs, equipment, teaching staff, non-teaching

staff, etc., as specified in Appendix A to these regulations.

9. Appendix A of the Course Regulations, 2014 deals with

conditions to be fulfilled by the academic training institution. As per

para. (1) of Appendix A, any authority or institution in India

applying to the Pharmacy Council of India for approval of courses of

study for B.Pharm under sub-section (1) of section 12 of the

Pharmacy Act shall comply with the infrastructural facilities as

prescribed by the Pharmacy Council of India from time to time. As

per para. (2), B.Pharm programme shall be conducted only in those

institutions which are approved by the Pharmacy Council of India

for B.Pharm course, as provided under Section 12 of the Pharmacy W.P.(C)No.28062 of 2020

Act. Para. (3) of Appendix A deals with teaching staff requirement;

para. (4) deals with non-teaching staff; para. (5) deals with

accommodation; and para. (6) deals with equipment and

apparatus.

10. The petitioner submitted Ext.P3 application dated

20.08.2019 before the 1st respondent State for grant of no-

objection certificate for starting B.Pharm course in its college,

during the academic year 2020-21. Ext.P3 application stands

rejected by Ext.P7 order dated 14.03.2020 of the 1st respondent

State. Paragraphs 2 and 3 of that order read thus;

"2. The present scenario in respect of the B.Pharm courses in the State of Kerala is that there are 48 institutions which are conducting Degree Course in Pharmacy. After an analysis of the situation that prevail in the State with respect to the employment opportunity of Degree Holders in Pharmacy as also the employability of those candidates who pass out B.Pharm from Self Financing Institutions are concerned, it was reported by the Director of Medical Education that there are serious issues with unemployment of Degree Holders in Pharmacy and also by the proliferation of Pharmacy Colleges/Institutions, unhealthy competition exists and the standards of education is depleting and the quality of the students who pass out from such Self Financing Institutions is alarming. Based on the study conducted, the Director of Medical Education had reported to the Government that there W.P.(C)No.28062 of 2020

is no need to sanction new Pharmacy institution imparting Bachelor of Pharmacy Course in Self Financing Sector in the State as there is no demand for such qualified hand in the State and that the present sanctioned strength will satisfy the requirement. It could be most inappropriate to start new institutions for imparting Pharmacy Courses without assessing the educational need in the State.

3. Government have examined the matter in detail and in the light of the above facts, the request for NOC for starting the new B.Pharm college in the existing self financing diploma level Sree Narayana Guru Memorial Pharmacy College is hereby rejected."

11. Though Ext.P7 order of the 1st respondent State is one

dated 14.03.2020, the petitioner has chosen to file this writ petition

only on 15.12.2020, challenging the rejection of Ext.P3 application

made for grant of no-objection certificate for starting B.Pharm

course in its college, during the academic year 2020-21. In the writ

petition, the petitioner has not offered any explanation whatsoever

for the delay of nearly nine months in challenging Ext.P7 order of

the 1st respondent State.

12. Vide letter No.14-56/2019-PCI (Moratorium)/3720-3826

dated 17.07.2019, the Pharmacy Council of India put a moratorium

on the opening of new pharmacy colleges for running D.Pharm as

well as B.Pharm courses for a period of five years beginning from W.P.(C)No.28062 of 2020

the academic year 2020-21. Such a resolution was taken

unanimously, in the 106th meeting of the Central Council held on 9 th

& 10th April, 2019 taking into consideration the availability of

sufficient qualified pharmacist workforce in the country. The

moratorium shall not be applicable in the North Eastern region of

the country where there is shortage of pharmacy colleges. The

Central Council in its 106th meeting noted that there are

approximately 1,985 D.Pharm and 1,439 B.Pharm institutions in

the country. The annual intake of students in these institutions

(both D.Pharm and B.Pharm) is 2,19,279. This available workforce

is enough to meet the current pharmacists-to-population needs of

the country.

13. By Ext.P1 communication dated 09.09.2019 of the

Pharmacy Council of India, all State Governments and Union

Territories were informed that, in the 107 th meeting of the Central

Council held on 5th & 6th August, 2019 it was unanimously decided

that moratorium on the opening of new pharmacy colleges for

running Diploma as well as Degree courses in pharmacy for a

period of five years beginning from the academic year 2020-2021

will be subject to the following conditions; W.P.(C)No.28062 of 2020

(a) The moratorium will not apply to the Government institutions;

(b) The moratorium will not apply to the institutions in North Eastern region;

(c) The moratorium will not apply to the States/Union Territories where the number of D.Pharm and B.Pharm institutions (both combined) is less than 50;

(d) The institutions which had applied for opening D.Pharm and/or B.Pharm colleges for 2019-20 academic session either to the Pharmacy Council of India or to the All India Council for Technical Education and the proposal was rejected or not inspected due to some reason or the other will he allowed lo apply for 2020-21 academic session and this relaxation is given only for one year, i.e., for 2020-21 academic session only;

(e) Existing approved pharmacy institutions will be allowed to apply for increase in intake capacity as per the Pharmacy Council of India norms and/or to start additional pharmacy course(s).

14. In Sayali Charitable Trust's College of Pharmacy v.

Pharmacy Council of India [2020 SCC OnLine Bom. 2564]

one of the contentions raised before a Division Bench of the

Bombay High Court was that, the Pharmacy Council of India has

taken a policy decision on 19.07.2019, to grant moratorium of five

years for opening new pharmacy institutes in the country

considering the market forces, the distribution of colleges across W.P.(C)No.28062 of 2020

the nation, the requirement of Pharmacy workforce, the availability

of qualified teaching faculties, pharmacists, and the population

ratio. The data placed on record of state wise distribution of doctors

and pharmacists vis-a-vis the Indian Population, which is extracted

in paragraph 16 of the said decision is reproduced hereunder;

Sl. State Population No. of Doctor per No. of Pharmacis No. of No. in Lakhs Doctors 1000 pharmacist t per 1000 pharmacist registered population registered population per doctor (2017) (2017)

1. Andhra 894 86129 0.96 115754 1.3 1.34 Pradesh

2. Arunachal 16.01 840 0.525 279 0.17 0.332 pradesh

3. Assam 344.9 22532 0.65 3668 0.10 0.162

4. Bihar 1089.2 40043 0.36 4163 0.04 0.1039

5. Chattisgarh 288 6915 0.24 9713 0.33 1.40

6. Delhi 186 16176 0.87 32075 1.72 1.98

7. Goa 15.09 3367 2.24 566 0.37 0.154

8. Gujrat 671 53954 0.80 119445 1.78 2.213

9. Haryana 279.6 5717 0.20 31663 1.13 5.53

10. Himachal 76.28 2849 0.38 3852 0.50 1.35 Pradesh

11. J&K 142 14326 1.00

12. Jharkhand 377 5093 0.135 2337 0.061 0.45

13. Karnataka 671.5 104794 1.56 52162 0.77 0.497

14. Madhya 788.1 34347 0.435 NA Pradesh

15. Maharashtra 1206.8 153513 1.27 203089 1.68 1.32

16. MCI 52666

17. Nagaland 31.2 801 0.25 1553 0.73 1.938

18. Odisha 453.4 21681 0.48 17665 0.39 0.814

19. Punjab 299.2 44682 1.5 44616 1.49 0.998

20. Rajasthan 748.8 40559 0.54 38156 0.51 0.94

21. Sikkim 6.43 893 1.48 NA

22. Tamil Nadu 797.8 126399 1.58 58466 0.73 0.46 W.P.(C)No.28062 of 2020

23. Kerala 369.6 55251 1.50 35382 0.95 0.64

24. Uttar 2192.4 71480 0.33 30276 0.14 0.42 Pradesh

25. Uttrakhand 103.2 7060 0.68 2643 0.25 0.375

26. West Bengal 954 66974 0.70 89630 0.93 1.33

27. Telengana 391.2 2354 0.06 NA

28. Meghalaya 34.7 1370 0.40

29. Mizoram 15.1 1313 0.87

30. Tripura 44.2 4747 1.07

31. Daman &Diu 3 52 0.17

32. Puducherry 7.45 2493 3.34

(Data source list of doctors registered with State MCI's and list of Pharmacists registered with State PCI's page 217 and 225 from National Health Profile 2018 published by MOH&FW, GOI. States where no data is provided in the report have been left blank for uniformity)

15. In Ext.P7 order of the 1st respondent State, it is stated

that at present there are 48 institutions in the State of Kerala

conducting B.Pharm course. After an analysis of the situation that

prevails in the State with respect to the employment opportunity of

B.Pharm holders as also their employability, the 2 nd respondent

Director of Medical Education reported that there are serious issues

with regard to unemployment of B.Pharm holders. There is

unhealthy competition and proliferation of pharmacy

colleges/institutions. The standards of education is depleting and

the quality of the students who pass out from Self-Financing

Institutions is alarming. Based on the study conducted, the 2 nd W.P.(C)No.28062 of 2020

respondent reported to the Government that there is no need to

sanction new Pharmacy institutions imparting Bachelor of Pharmacy

course in Self-Financing Sector in the State as there is no demand

for such qualified hands in the State and that, the present

sanctioned strength will satisfy the requirement and that, it could

be most inappropriate to start new institutions for imparting

pharmacy courses without assessing the educational need in the

State.

16. As per the list of approved institutions available in the

official web site of the Pharmacy Council of India there are 39

institutions in State of Kerala conducting D.Pharm course, out of

which 5 institutions were granted approval for starting D.Pharm

course during the academic year 2020-21. In the reply affidavit

filed by the petitioner it is pointed out that several institutions were

granted no-objection certificate by the 1 st respondent State during

the academic year 2019-20 and 2020-21 for starting B.Pharm

course. In the statement filed on behalf of the 1 st respondent State

it is pointed out that, as per Ext.P1, the institutions which had

applied for opening D.Pharm and/or B.Pharm colleges for the

academic session 2019-20 and where the proposal was rejected or W.P.(C)No.28062 of 2020

not inspected due to some reasons or the other, they will be

allowed to apply for 2020-21 academic session. It is not discernible

from the pleadings and materials on record as to whether the

institutions which were granted approval for starting B.Pharm

course during the academic year 2020-21 falls under that category.

17. The 2nd respondent Kerala University of Health Sciences

issued Ext.P2 notification dated 27.08.2020 inviting application for

starting new colleges/additional courses/enhancement of seats for

the academic year 2021-22. As per Ext.P2, applications are invited

for starting additional courses/enhancement of seats in UG/PG

courses in the existing affiliated pharmacy institutions; and for

starting new degree courses in Government institutions/institutions

having the approval of Pharmacy Council of India for starting UG

courses. Though Ext.P2 notification issued by the 2 nd respondent

University is one dated 27.08.2020, the petitioner has chosen to

submit Ext.P8 representation before the 1st respondent State, only

on 03.12.2020, seeking no-objection certificate for starting

B.Pharm course in its college, during the academic year 2021-22.

18. As already noticed, in the 106 th meeting of the Central

Council held on 9th & 10th April, 2019 a resolution was taken W.P.(C)No.28062 of 2020

unanimously to put a moratorium on the opening of new pharmacy

colleges for running D.Pharm as well as B.Pharm courses for a

period of five years, beginning from the academic year 2020-21,

taking into consideration the availability of sufficient qualified

pharmacist workforce in the country, which is enough to meet the

current pharmacists-to-population needs. Later, by Ext.P1

communication dated 09.09.2019 of the Pharmacy Council of India,

which is issued based on the decision taken in the 107 th meeting of

the Central Council held on 5th & 6th August, 2019, all State

Governments and Union Territories were informed that the

moratorium for a period of five years beginning from the academic

year 2020-2021 will be subject to certain conditions. As per Ext.P1,

the moratorium will not apply to the States/Union Territories where

the number of D.Pharm and B.Pharm institutions (both combined)

is less than 50. The existing approved pharmacy institutions will be

allowed to apply for increase in intake capacity as per the

Pharmacy Council of India norms and/or to start additional

pharmacy course(s).

19. Along with the reply affidavit filed by the petitioner,

Exts.P9 and P10 documents, which are relevant extracts of two W.P.(C)No.28062 of 2020

articles published in respect of job opportunities for pharmacy

students are placed on record, in order to point out that there will

be a huge demand for pharmacists even during post COVID period.

20. As already noticed hereinbefore there are 48 institutions

in the State of Kerala conducting B.Pharm course with the affiliation

of the 2nd respondent Kerala University of Health Sciences and

there are 39 institutions conducting D.Pharm course with the

affiliation of the 3rd respondent Director of Medical Education. In

view of the Course Regulations of the Pharmacy Council of India, an

academic training institution conducting B.Pharm course or

D.Pharm course is required to fulfil the conditions regarding the

requirement of teaching staff, in addition to the requirement as to

infrastructure. Therefore, before granting approval by the

Pharmacy Council of India/consent of affiliation by the 2 nd

respondent University or the 3rd respondent Director of Medical

Education for B.Pharm or D.Pharm course, the availability of

qualified faculties, sufficient in number, for imparting education in

such institutions will have to be ensured, failing which such

institutions will produce half-baked pharmacists, which in turn,

would adversely affect the health of the general public. W.P.(C)No.28062 of 2020

21. The no-objection certificate/essentiality certificate of the

1st respondent State is a mandatory document, which has to be

submitted by an institution seeking approval/affiliation for

conducting B.Pharm or D.Pharm course. Consideration of the

request for no-objection certificate/essentiality certificate by the 1 st

respondent State should be in a fair manner and the procedure that

has to be adopted should be one in conformity with the principles of

natural justice. The materials or data collected by the 1 st

respondent State, through the 3rd respondent Director of Medical

Education, should be made available to the applicant, who should

be given an opportunity of being heard and the decision taken by

the 1st respondent State should reflect application of mind to the

relevant aspects.

22. As already noticed hereinbefore, though Ext.P7 order of

the 1st respondent is one dated 14.03.2020, whereby Ext.P3

application made by the petitioner for issuance of no-objection

certificate for starting B.Pharm course in its college, during the

academic year 2020-21 stands rejected, the petitioner has chosen

to file this writ petition challenging the said order only on

15.12.2020. At this distance of time, no interference is warranted W.P.(C)No.28062 of 2020

on Ext.P7 order, since Ext.P3 application is for the academic year

2020-21.

23. By Ext.P1 communication dated 09.09.2019, the

Pharmacy Council of India has resolved that the moratorium on the

opening of new pharmacy colleges for running Diploma as well as

Degree courses in pharmacy for a period of 5 years beginning from

the academic year 2020-21 will be subject to certain conditions

stipulated therein. The 1st respondent State has to consider Ext.P8

application made by the petitioner seeking no-objection certificate

for starting B.Pharm course, for the academic year 2021-22, by

considering the entire issue afresh, taking note of the conditions

stipulated in Ext.P1 and also the observations contained in this

judgment. Any materials or data collected through the 3 rd

respondent Director of Medical Education on the request made by

the petitioner for no-objection certificate shall be made available to

the petitioner and the petitioner shall be permitted to submit

written submission raising appropriate legal and factual

contentions, which shall be adverted to by the 1 st respondent State

while taking a decision on Ext.P8 application.

Therefore, this writ petition is disposed of by directing the 1 st W.P.(C)No.28062 of 2020

respondent State to undertake the exercise of consideration of

Ext.P8 application made by the petitioner, as directed above, and

pass a reasoned order, as expeditiously as possible, at any rate,

within a period of three weeks from the date of receipt of a certified

copy of this judgment.

Sd/-

ANIL K. NARENDRAN JUDGE

yd W.P.(C)No.28062 of 2020

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE ORDER DATED NIL ISSUED BY THE PHARMACY COUNCIL OF INDIA TO ALL THE STATE GOVERNMENTS AND UNION TERRITORIES

EXHIBIT P2 TRUE COPY OF THE NOTIFICATION,DATED 27.08.2020 BEARING NO.25494/ACI/GEN A2/2020/KUHS,ISSUED BY THE 2ND RESPONDENT

EXHIBIT P3 TRUE COPY OF THE APPLICATION NO.ACAD/02/BP-107/08/19,DATED 20.08.2019 SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT FOR GETTING THE NOC FROM THE GOVERNMENT OF KEALA FOR STARTING THE NEW B.PHARM DEGREE COURSE FOR THE ACADEMIC YEAR 2020-2021,IN THE PETITIONER'S COLLEGE

EXHIBIT P4 TRUE C0PY OF THE ACKNOWLEDGMENT RECEIPT DATED 25.11.2020 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER VIA E-MAIL

EXHIBIT P5 TRUE COPY OF THE ORDER ISSUED BY THE 4TH RESPONDENT DATED 11.03.2020

EXHIBIT P6 TRUE COPY OF THE JUDGMENT IN WP(C)NO.31050/2018 AND CONNECTED CASES DATED 04.09.2019

EXHIBIT P7 TRUE COPY OF THE ORDER DATED 14.03.2020 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER BEARING NO.G.O(RT)NO.574/2020/H&FWD

EXHIBIT P8 TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT FOR GETTING NOC FOR STARTING B.PHARM DEGREE COURSE FOR THE ACADEMIC YEAR 2021-2022.

EXHIBIT P9 TRUE COPY OF THE RELEVANT PAGES OF AN ARTICLE PUBLISHED IN RESPECT OF JOB OPPORTUNITIES FOR PHARMACY STUDENTS.

W.P.(C)No.28062 of 2020

EXHIBIT P10 TRUE COPY OF RELEVANT PAGE OF AN ARTICLE PUBLISHED BY ONE MIKE HENNESSEY IN RESPECT OF JOB OPPORTUNITIES FOR PHARMACY STUDENTS.

RESPONDENTS' EXHIBITS:NIL

TRUE COPY

P.A. TO JUDGE