Full Text
HIGH COURT OF DELHI
Date of Decision: 13.12.2022
ANJALI COLLEGE OF PHARMACY AND SCIENCE ..... Petitioner
Through: Mr Aseem Mehrotra and Ms Deeksha, Advocates.
Through: Mr Abhishek Singh, Mr Amit Sharma, Ms Vijaya Singh, Mr Akshat
Choudhary, Mr Shreshth Arya, Mr Madhav Bhatia and Mr Aditya Pandey, Advocates.
JUDGMENT
1. The petitioner/ institute has assailed the order dated 31.10.2022 passed by the Executive Committee of the Respondent/Pharmacy Council of India in its 380th meeting (hereinafter referred to as the “impugned order”), whereby the Respondent has instructed the petitioner/institute to not make admissions from the 2022-2023 academic session. Aggrieved with the said impugned order, the petitioner has filed the present writ petition seeking the following reliefs:- “a) issue an appropriate Writ, direction or order in the nature of writ of certiorari quashing Impugned Decision of 380th Executive Council of Respondent dated 31.10.2022 whereby approval for academic year 2022-23 has been declined to the Petitioner; b) issue an appropriate Writ, direction or order in the nature of writ of mandamus commanding the Respondent to grant extension of approval in respect of B. Pharma with 60 seats, D. Pharma with 60 seats and M. Pharma (Pharmaceutics) with 15 seats for academic year 2022-23; c) issue any other Writ, order or direction as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.”
BACKGROUND FACTS
2. The facts germane for deciding the present writ petition are that the petitioner/institute is a college which has been imparting education in the field of pharmacy since 1998. For the academic year 2021-2022, the petitioner was having an approval for sanctioned strength of 60 B. Pharma seats, 60 seats of
2022-2023, the petitioner submitted an application on 21.12.2021 for extension of approval for all the above-said three courses.
3. Admittedly as per the norms of the respondent, the premises of the petitioner were inspected by a team of inspectors on 10/11.09.2022, who forwarded their inspection report to the Executive Committee. The Executive Committee after considering the report of the inspectors took a decision on the application of the petitioner in its 376th meeting on 14.09.2022, the relevant part of which, reads as follows:- “It was decided to call Principal along with teaching staff to appear before Personal Hearing Committee (PHC).”
4. Aggrieved by the aforementioned decision of the Executive Committee, WP(C) No. 14262/ 2022 was filed by the petitioner seeking the following reliefs:- “a) issue an appropriate Writ, direction or order in the nature of writ of certiorari quashing Impugned Decision of Executive Council of Respondent under Item No. 376 EC/140 dated 14.9.2022; b) issue an appropriate Writ, direction or order in the nature of writ of mandamus commanding the Respondent to grant extension of approval in respect of B. Pharma with 60 seats, D. Pharma with 60 seats and M. Pharma (Pharmaceutics) with 15 seats for academic year 2022-23; c) Issue any other Writ, order or direction as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.”
5. It appears that during the pendency of the aforenoted Writ Petition, an appeal was preferred by the petitioner on 03.10.2022, against the aforesaid decision dated 14.09.2022 of the Executive Committee asking the Principal along with teaching staff to appear before Personal Hearing Committee.
6. When the above Writ Petition was listed before this Hon’ble Court on 07.10.2022, the learned counsel for the petitioner confined his prayer only to an issuance of a direction for disposal of the petitioner’s appeal in a time bound manner. Accordingly, the Writ Petition was adjourned to enable the learned counsel for the respondent to take instructions. The relevant portion of order dated 07.10.2022 reads as under:-
7. The Writ petition of the petitioner was then listed and disposed of on 11.10.2022 with the following directions:-
8. The petitioner felt aggrieved with the above order as the same did not lay down any timeline for the respondent to dispose of the appeal of the petitioner and thus, preferred an intra-court appeal L.P.A. No. 602/2022 against the said order. The appeal of the petitioner was listed before the Division Bench of this Court on 19.10.2022, when the petitioner prayed for the withdrawal of the LPA with liberty to file a review petition before the learned Single Judge.
9. In the meanwhile, the respondent vide email dated 18.10.2022 informed the petitioner that the date of hearing of the appeal of the petitioner was 21.10.2022 and reiterated its earlier decision to call the Principal along with the entire faculty before the Personal Hearing Committee (hereinafter PHC) at the office of the respondent. Accordingly, the petitioner institute presented its Principal along with some teaching faculties before the PHC on 21.10.2022.
10. Pertinently, immediately after the petitioner institute presented its teaching faculties before the PHC on 21.10.2022, the Respondent issued a notification bearing Ref. No. 14-443/2022/2022-PCI (appeal process 2022- 2023)/14367 on 22.10.2022 notifying that the Executive Committee of the respondent in its 379th meeting has resolved to restore the intake of institutions wherever the same was reduced for the academic session 2022-2023 to the level of previous approved intake of academic session 2021-2022 on the institutions submitting an affidavit along with their appeal application and also updating the faculty data on the Respondent’s portal. The relevant extract of notification dated 22.10.2022 read thus:- “….
2. I am directed to state that 379 Executive Committee in its meeting held on 15.10.2022 has decided as under – a) wherever admission intake was reduced in 2022-2023 academic session in pharmacy course(s), the previous approved intake during 2021-2022 academic session be restored for 2022-2023 academic session also. b) to notify to all such Institutes that an affidavit* should be uploaded on institution's dash board on the portal of Pharmacy Council of India, New Delhi within one month of receipt of this Notification without fail. There should not be any change/modification/alteration in the affidavit provided with this Notification. In case any change is observed, the same will not be entertained at any cost and the liabilities will rest only with the Institute and NOT PCI.
3. In view of above, all institutions are hereby directed to submit the prescribed affidavit(enclosed as Annexure-A) along with their appeal application (enclosed as Annexure-B)and update the faculty data on PCI portal within one month of receipt of this notification.”
11. Thereafter, the review petition [Review Pet. 282/2022] came to be disposed of by the learned Single Judge taking note of the statement of the learned counsel for the respondent that the petitioner institute is not entitled to the relaxation of the notification dated 22.10.2021 and that the appeal of the petitioner pending before the competent authority has been heard and decided by the 380th meeting of the Executive Committee held on 31.10.2022. The relevant portion of the order dated 11.11.2022 reads as under:- “1.Pursuant to order dated 9th November, 2022, Ms. Manmeet Kaur Sareen, counsel for Respondent, has returned with instructions. According to her, the notification dated 22th October, 2022, conveying decision of 379th Executive Committee meeting, which came to be issued after the conclusion of appeal proceedings, is not applicable to the Petitioner. In any event, she states that Petitioner's appeal has been heard and decided by 380th meeting of the Executive Committee held on 31st October,
2022.
2. Mr. Aseem Mehrotra, counsel for Petitioner, states that the decision taken in the said meeting has not been conveyed to the Petitioner till date, to which Ms. Kaur assures that the decision shall be conveyed within three days from today.”
IMPUGNED ORDER DATED 31.10.2022
12. The impugned order dated 31.10.2022 was conveyed to the petitioner. Notably, the applications of the petitioner for each of the courses i.e. B. Pharm,
13. Mr. Aseem Mehrotra, the learned counsel for the petitioner would submit that the petitioner/institute has the requisite number of faculty and that the decision of the Executive Committee to call the Principal of the institute along with all the faculty members reeks of mala fide. Inviting the attention of the Court to the inspector’s report (annexure P-4), he submits there was no need for all the faculty members to present themselves before the PHC when the report of the inspectors has in no uncertain terms recorded that the total number of faculty members working in the petitioner institute is 25 i.e. the minimum required faculty under the norms and regulations. The learned counsel for the petitioner seeks to rely upon a judgment of a Coordinate Bench of this Court titled as “Dr. M. K. Shah Medical College and Research Centre vs. National Medical Commission”: 2022 SCC OnLine Del 938 to submit that statutory bodies like the respondent should not ordinarily diverge from the report of the Inspectors/Experts and shall not arrive at arbitrary conclusions without giving any opportunity to the petitioner to explain the so called deficiency. The relevant paragraph of Dr. M. K. Shah Medical College and Research Centre (supra) reads as under:-
14. Mr Mehrotra, also submits that it was not possible for all the faculty members of the institute to present themselves and the failure of the faculty members to appear before the PHC was beyond the control of the petitioner, inasmuch as, the petitioner was informed of the date, time and venue of the PHC only on 18.10.2022 at 05:09 P.M. He submits that 12 faculty members had left for their home town for Diwali as the same was on 24.10.2022 after getting their leaves approved before 18.10.2022. Further, according to the learned counsel for the petitioner, of 12 faculty members who had left for their home, 05 still presented themselves before the PHC and another 07 members were on their way but could not arrive at the location at the given time due to reasons beyond their control.
15. He would also contend that no objection can be raised by the respondent in respect of the 08 faculty members who were appointed by the petitioner after the inspection had been conducted. He sought to justify new appointment of faculty stating that that the petitioner was constrained to appoint new faculty members as 07 faculty members had left the petitioner institute on account delay on part of the respondent in granting approval for conducting classes in the academic year 2022-2023.
16. As regards the objection of the respondent in respect of lack of qualification of Dr. Mihir Y. Parmar who was appointed as new Principal of the petitioner institute, Mr. Mehrotra, would submit that Dr. Mihir Y. Parmar has the requisite experience as per regulations notified by the respondent titled as “Minimum Qualification for Teachers in Pharmacy Institutions Regulations, 2014”. At this stage it may be apt to reproduce the relevant of the said regulations, which provides for the minimum requirement for an individual to be appointed as a director/ Principal/head of institution, which are as follows: Mr. Mehrotra draws the attention of the Court to paragraph 5 of additional affidavit dated 03.12.2022 filed by the petitioner to urge that Dr. Mihir Y. Parmar had more than 19 years teaching/industry experience when he joined the petitioner-institute on 17.10.2022. Paragraph 5 of the affidavit dated 03.12.2022 reads as under:
17. Mr. Mehrotra would also contend that the objection of the PHC that Dr. Mihir Y. Parmar could not provide his relieving certificate from his erstwhile institute i.e. Sanjay Gandhi College of Pharmacy, Mathura does not hold any water as the same was provided to the PHC on 21.10.2022 and that the relieving certificate dated 30.09.2022 has also been filed before this Court as Annexure A-1/3 along with the additional affidavit.
18. Assailing the impugned order further, Mr. Mehrotra would contend that another similar objection which was raised by the PHC in respect of Dr. Pawan Kumar alleging that Dr. Pawan Kumar was lacking the requisite qualification/experience, is baseless and does not take into account material/documents which were produced before the PHC. The learned counsel for the petitioner drew the attention of this Court to the experience letters issued by the erstwhile employer of Dr. Pawan Kumar to dispel the above objection. He submits that Dr. Pawan Kumar worked as an assistant professor from 01.07.2012 to 28.02.2017 and as an associate professor from 01.03.2017 to 24.12.2021 in Sunder Deep College of Pharmacy and has been working with the petitioner-institute since 27.12.2021. According to Mr. Mehrotra, Dr. Pawan Kumar had the requisite experience of 10 years in terms of the Minimum Qualification for Teachers in Pharmacy Institutions Regulations, 2014, the relevant regulation of which is reads as under:- Professor First Class B.Pharm with Master’s degree in Pharmacy (M.Pharm) in appropriate branch of specialization in Pharmacy or Pharm. D (Qualifications must be PCI recognized) With Ph.D degree in any of Pharmacy subjects (Ph.D. Qualification must be PCI recognized). Essential 10 years experience in teaching or research experience out of which 5 years must be as Associate Professor in PCI approved/ recognized pharmacy college. Desirable Administrative experience in a responsible position.
19. The petitioner would also submit that the objection qua faculty member Ms. Kris Jain is also unsustainable as the discrepancies pointed out qua her are no discrepancies at all. It is submitted that Ms. Kris Jain was appointed vide office order dated 19.07.2022 and she has joined her duties from 25.07.2022. Similarly, the objection of the respondent in not accepting the relieving letter issued by KDC College of Pharmacy, Mathura on the ground that there is an overwriting in the date of resignation as well as date of relieving cannot be sustained. Mr. Mehrotra, the learned counsel for the petitioner would draw the attention of this Court to the relieving letter dated 22.04.2022 issued by KDC College to contend that no such overwriting exists on the document. Further, the failure of the faculty members in producing the original documents before the PHC cannot lead to an adverse inference being drawn against the petitioner-institute in as much as the respondent in its email dated 18.10.2022 had never informed the petitioner-institute that the faculty members ought to bring their original documents. Further, when the original documents were PHC to take a view which was inconsistent to the report of the inspectors.
20. Mr. Mehrotra, the learned counsel for the petitioner would further submit that the Appointment and Joining Letters of all faculty members were submitted before PHC clearly mentioning the designation and salary of each faculty member. He states that all faculty members have the requisite experience and the faculty cadre ratio is also maintained.
21. The petitioner would also allege mala fide on the part of the respondent in as much as the petitioner-institute was not granted benefit of the notification dated 22.10.2022 despite the petitioner submitting an affidavit seeking restoration of its intake on the same strength as the previous academic year i.e. 2021-2022.
SUBMISSIONS OF THE RESPONDENT
22. Mr. Abhishek Singh, the learned counsel for the respondent refutes all the above contentions of the Petitioner. Supporting the impugned order dated 31.10.2022, he would submit the present Writ Petition is not maintainable as it involves disputed questions of fact. Further, Mr. Singh would submit that this Court under Article 226 of the Constitution would not interfere with the decision of the Executive Committee, which is an expert body unless the decision of the body shocks the conscience of the Court. He relied upon the decision of a Co-ordinate Bench of this Court entitled Janta College of Pharmacy vs. All India Council for Technical Education, 2019 SCC Online Del 9421, to contend that this Court cannot supplant its views over that of the expert body and the test to determine the reasonableness of the decision of the expert body is not what the Court considers reasonable or unreasonable but a decision which the Court thinks that no reasonable person could have taken and which led to manifest injustice.
23. Elaborating further on his submissions, the learned counsel for the respondent would further contend that two faculty members namely Dr. Neetesh Sharma and Mr. Akhil Mangal who were working as the Principal and Asstt. Professor, respectively, in petitioner-institute were accused to have demanded and collected money from students to pass them in sessional and practical examination as also to complete their short attendance. He submits that intriguingly when the above said persons tendered their resignations to the petitioner-institute, the same stood rejected by the petitioner. This according to the learned counsel for the respondent, manifests that the resignations of Dr. Neetesh Sharma and Mr. Akhil Mangal were not accepted by the petitionerinstitute to maintain the requisite number of faculty members. To support his argument that the aforesaid persons were still on the rolls of the petitioner, the learned counsel for the invited the attention of the court to the Standard Inspection Form (S.I.F.) filed along with its application which included the names of the above noted persons.
24. The learned counsel for the respondent would further submit that Dr. Mihir Y. Parmar i.e. the current Principal of the petitioner-institute is not eligible to be appointed as a Principal in the petitioner-institute as he does not have the requisite essential experience of 15 years. To support his case, the learned counsel for the respondent would draw the attention of the Court to paragraph 5 of the Additional Affidavit filed by the petitioner where the experience of the petitioner has been admitted to be 14 years 9 months and 26 days. He further referred to the tabulated chart and specifically to Sl.No.5, i.e., College of Pharmacy, King Saudi University, Riyadh, Saudi Arabia, to contend that the time spent by Dr. Mihir Y. Parmar, i.e., period of two years eight months and twenty days is not to be counted towards his qualification/experience as it is not a college approved by the PCI.
25. To fortify the above contention of his, Mr. Singh referred to the essential qualifications for an individual to be appointed as a Director/Principal/Head of Institution, which is “15 years experience in teaching or research out of which 5 years must be as Professor/HOD in a PCI approved/Recognized pharmacy college”. He also contends that even as of today, Dr. Mihir Y. Parmar does not have the requisite experience of 15 years even if he is allowed the benefit of the period spent by him at the college in Saudi Arabia. He submits that for all these reasons, Dr. Parmar is not eligible to be appointed as Principal of the petitioner institute.
26. Mr. Singh, would also contend that the notification dated 22.10.2022 cannot enure to the benefit of the petitioner/institute as the said notification is applicable only to institutions whose intake has been reduced. Whereas, in the case of the petitioner/institute, the intake has not been reduced but approval has been denied.
REASONS AND CONCLUSION
27. I have considered the submissions of the learned counsels for the parties and have perused the relevant documents placed on record.
28. Much emphasis has been laid by the learned counsel for the parties on the experience of Dr. Mihir Y. Parmar. It is not in dispute that for an individual to be appointed as the Principal in the petitioner/institute conducting
29. I also do not find merit in the submission of Mr. Mehrotra that as on today, Dr. Parmar has the requisite experience of 15 years, therefore, there is no deficiency in that regard. I am of the view that the experience or eligibility of Dr. Parmar is not to be seen as it exists today. Such eligibility has to be seen with reference to the last date fixed for the submission of application for approval. Undisputedly, Dr. Parmar was not having the requisite experience of 15 years at that time. He did not have the said experience even on the date when inspection of the petitioner/institute was carried out. Therefore, the petitioner cannot be said to have met the criteria under the regulations for conducting B.Pharm/M.Pharm courses for the academic year 2022-2023. However, it is not in dispute that Dr. Parmar possesses the essential teaching experience of minimum five years for being appointed as Principal for Diploma Course at the petitioner/institute.
30. In so far as the objection that Dr. Pawan Kumar did not have the requisite experience of 10 years in a PCI approved college for being appointed as a Professor, the same is only to be noted to be rejected. I have gone through the relieving certificate of Dr. Pawan Kumar issued by Sunder Deep College of Pharmacy and I find that Dr. Pawan Kumar had worked as an Assistant Professor from 01.07.2012 to 28.02.2017 and as an Associate Professor from 01.03.2017 to 24.12.2021 in the same college. Thereafter, he has been working with the petitioner/institute since 27.12.2021. The relieving certificate issued by the erstwhile college of Dr. Pawan Kumar is annexed as Annexure P-20 (colly) to the petition. Inspectors’ report also verifies the candidature of Dr. Pawan Kumar and his presence in the college on the day of physical inspection. I am, therefore, of the opinion that Dr. Pawan Kumar was eligible to be appointed as a Professor in the petitioner-institute and the objection raised by the Personal Hearing Committee is not tenable.
31. The next objection of the respondent is qua Ms. Rekha Rani. The objection is that there is an overwriting in the date of resignation and relieving, therefore, the relieving letter issued by KDC College of Pharmacy, Mathura cannot be said to be genuine. A perusal of the relieving letter of Ms. Rekha Rani issued by KDC College of Pharmacy, Mathura would reveal there is no overwriting on the said letter. It is luminously clear that Ms. Rekha Rani resigned from her erstwhile institution vide resignation letter dated 06.04.2022 and was relieved from her duties vide relieving letter dated 22.04.2022. The relieving letter is extracted below:-
32. Similar objection of the respondent qua Ms. Kris Jain is that there is a discrepancy in her designation in the SDF filed by the petitioner/institute and her joining letter. As per the impugned order dated 31.10.2022, the designation of Ms. Kris Jain in the joining letter is “Assistant Professor” though it has been claimed that she is an Associate Professor. I have perused the joining letter dated 25.07.2022 and I find that the designation of Ms. Kris Jain is “Associate Professor” and not “Assistant Professor” as mentioned in the impugned order. The objection of the respondent shows non-application of mind and is against the material which was placed before the PHC. The said objection thus, cannot be sustained. It is apt to reproduce the joining letter dated 25.07.2022, which is as under:-
33. In respect of the objection that original documents were not produced by the faculty members, suffice it to say that mere non-production of the originals of the documents by the aforesaid faculty members cannot be a ground to reject the application of the petitioner/institute. The email dated 18.10.2022 whereby, the petitioner was asked to present the Principal as well as all the faculty members, does not direct the faculty members of the petitioner/institute to bring the original of their respective documents. Furthermore, when the said documents have been duly verified by the inspectors of the respondents, divergence from their report without valid ground appears to be unjust.
34. Mr. Singh, the learned counsel for the respondent, also sought to justify the denial of approval by the respondent on the ground that the erstwhile Principal and Asstt. Professor of the petitioner/institute were demanding money from students to pass them in the examinations and also to complete their short attendance. Despite the alleged misconduct on their part, they were retained on the rolls of the petitioner/institute to complete the number of faculties. Mr. Mehrotra has drawn the attention of the court to email dated 03.10.2022 addressed by the petitioner to the Registrar of the respondent, wherefrom it is borne out that not only a case was registered by the petitioner against aforesaid Principal and faculty member but the respondent was also informed of the acts of the said persons vide its letters dated 21.12.2021 and 04.03.2022 with a request to take action against them. Mr. Mehrotra submits that the petitioner could not accept the resignations of the aforesaid persons in the middle of an ongoing semester in view of the circular of the respondent dated 09.10.2013 which mandates that teaching faculty will not be eligible to join other institutions during the same academic year. There is considerable merit in the submission of Mr. Mehrotra, the learned counsel for the petitioner. Even the above fact has been voluntarily disclosed by the petitioner in the present writ petition; therefore, no mala fide can be attributed to the petitioner on this count.
35. In so far as the petitioner’s contention that it has not been extended the benefit of notification dated 22.10.2022 is concerned, suffice it to say that the said notification speaks only of a situation where the admission intake was reduced in 2022-23 academic session. But in the case of the petitioner there is no reduction in the intake. On the contrary, the petitioner’s application for approval was rejected by the respondent. Therefore, the benefit of the said notification cannot be extended to the petitioner.
36. All the objections raised by the Personal Hearing Committee (PHC) are untenable except that the Principal, Dr. Mihir Y. Parmar does not have the eligibility to be appointed as Principal for the B.Pharm and M.Pharm courses. The inspectors’ report does not point out any discrepancy with regard to faculty or infrastructure. The inspectors’ report could not have been discarded by the respondent without any justified reasons. There is also a doubt as regard the correctness of the procedure adopted by the EC in directing the Principal and the entire faculty to appear in person before the PHC when the inspectors’ report was already available. To a query put by the court to the learned counsel for the respondent as to whether there is any regulation providing for such procedure, the answer was in the negative.
37. Since the Principal of the petitioner institute lacks the eligibility to be appointed as such for B.Pharm and M. Pharm courses, no direction could be given to the respondent to grant approval to petitioner for the said courses as it would in essence be directing the respondent to violate its own regulations. It is trite that the High Court while exercising jurisdiction under Article 226 of the Constitution of India cannot direct statutory bodies to violate their own rules and regulations. I am also supported in my view by the judgment of the Supreme Court in Maharishi Dayanand University vs. Surjeet Kaur, (2010) 11 SCC 159, the relevant paragraphs of which read as under: “11. It is settled legal proposition that neither the court nor any tribunal has the competence to issue a direction contrary to law and to act in contravention of a statutory provision. The Court has no competence to issue a direction contrary to law nor the court can direct an authority to act in contravention of the statutory provisions.
12. In State of Punjab v. Renuka Singla [(1994) 1 SCC 175], dealing with a similar situation, this Court observed as under: (SCC p. 178, para 8) “8. … We fail to appreciate as to how the High Court or this Court can be generous or liberal in issuing such directions which in substance amount to directing the authorities concerned to violate their own statutory rules and regulations….”
13. Similarly, in Karnataka SRTC v. Ashrafulla Khan [(2002) 2 SCC 560: AIR 2002 SC 629], this Court held as under: (SCC pp. 572-73, para 27) “27. … The High Court under Article 226 of the Constitution is required to enforce rule of law and not pass order or direction which is contrary to what has been injuncted by law.” Similar view has been reiterated by this Court in Manish Goel v. Rohini Goel [(2010) 4 SCC 393: (2010) 2 SCC (Civ) 162: AIR 2010 SC 1099]
38. Undisputedly, the petitioner has the requisite faculty and an eligible Principal for grant of approval for D.Pharm course. This being the position, the impugned order to the extent that it instructs the petitioner’s institute not to make admissions for the Academic Session 2022-23 for its D.Pharm course is illegal and is accordingly set aside.
39. Keeping in view the fact that petitioner is entitled for grant of approval and already there has been delay on part of the respondent in taking timely decision on the application and appeal of the petitioner, this court, instead of remanding the matter back to the respondent for issuance of fresh order, is inclined to direct the respondent to forthwith grant approval to the petitioner for its D.Pharm course.
40. The court is informed by the learned counsel for the parties that the counselling for D.Pharma course in the state of U.P. is still going on, therefore the respondent is directed to allow the petitioner’s college to take admission of 60 students in the ongoing counseling of D.Pharm course for the Academic Session 2022-23.
41. The writ petition is partly allowed in the above terms.
VIKAS MAHAJAN, J.