Allowed

Secretary, Pharmacy Council of India v. Kamleshbhai Arjun Kumar Maheshwari

Gujarat HC4 Jul 2012LPA/3016/2010

Case brief

AI extract

What is this about?

The High Court set aside a Single Judge's order granting registration to students who initially studied at an unrecognized institution but later transferred to a recognized one where they completed their course. The Full Bench granted registration to the five students as an exception due to the peculiar facts and a lapse by the admission committee, explicitly stating this decision issues no preced

What did the court decide?

Set aside the Single Judge's order; directed the Gujarat State Pharmacy Council to grant registration to the five concerned students at the earliest.

Secretary, Pharmacy Council of India Vs Kamleshbhai… — Service and Employment | Gujarat HC (2012)

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LPA/3019/2010

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1/13

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JUDGMENT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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LETTERS PATENT APPEAL No. 3019 of 2010
In SPECIAL CIVIL APPLICATION No. 5728 of 2010

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With
LETTERS PATENT APPEAL No. 3020 of 2010
In SPECIAL CIVIL APPLICATION No. 5729 of 2010
To

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LETTERS PATENT APPEAL No. 3023 of 2010
In SPECIAL CIVIL APPLICATION No. 5732 of 2010
With
LETTERS PATENT APPEAL No. 3014 of 2010
In SPECIAL CIVIL APPLICATION No. 5728 of 2010
To

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LETTERS PATENT APPEAL No. 3018 of 2010
In SPECIAL CIVIL APPLICATION No. 5732 of 2010

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For Approval and Signature:

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HONOURABLE MR.JUSTICE P.B.MAJMUDAR

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HONOURABLE MR.JUSTICE PARESH UPADHYAY

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=========================================================

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1^{Whether Reporters of Local Papers may be allowed} to see the judgment ?

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2 To be referred to the Reporter or not ?

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3^{Whether their Lordships wish to see the fair copy} of the judgment ?

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Whether this case involves a substantial question of law as to the interpretation of the 4 constitution of India, 1950 or any order made thereunder ?

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5^{Whether it is to be circulated to the civil judge} ?

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=========================================================

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GUJARAT STATE PHARMACY COUNCILTHROUGH PRESIDENT -

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Appellant(s) Versus

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HAFEEZ RIZWAN MAHAMOOD & 7 - Respondent(s)

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=========================================================

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Appearance :

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MR TUSHAR MEHTA WITH MR OMKAR C DAVEfor Appellant(s) : 1,
MR GAURAV CHUDASAMA for Respondent(s) : 1,
MS MEGHA CHITALIAY Ld. AGP for Respondent(s) : 2,
NOTICE SERVED BY DS for Respondent(s) : 3,6 - 7.

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LPA/3019/2010

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2/13

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JUDGMENT

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MR DHAVAL G NANAVATI for Respondent(s) : 4,
MRS VD NANAVATI for Respondent(s) : 5,
MS MAMTA R VYAS for Respondent(s) : 6,

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=========================================================

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CORAM : HONOURABLE MR.JUSTICE P.B.MAJMUDAR

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and

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HONOURABLE MR.JUSTICE PARESH UPADHYAY

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Date : 04/07/2012

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ORAL JUDGMENT

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(Per : HONOURABLE MR.JUSTICE P.B.MAJMUDAR)

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1.All these appeals are directed against the common
order passed by the learned Single Judge of this Court
in Special Civil Application No. 5728/2010 to
5732/2010, by which, the learned Single Judge allowed
the writ petitions filed by the petitioners-students.

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2.The challenge before the learned Single Judge was
against the decision taken by the Gujarat State
Pharmacy Council, who is respondent no. 7 in the
Special Civil Application, by which, the respondent
no. 7 refused to give registration to the concerned
petitioners as pharmacist on the ground that the said
petitioners have undertaken study in an unrecognized
institution, and therefore, they are not entitled to
get the registration. The original respondent no. 7 is
appellant in LPA No. 3019/2010 to 3023/2010.

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3.The learned Single Judge by the impugned order
dated 28.9.2010 came to the conclusion that if Section

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3/13

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JUDGMENT

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LPA/3019/2010

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12 of the Act is properly considered and understood,
then, authority within meaning of section 12 must be
Gujarat University and not College because course has
been conducted by Gujarat University, Examinations are
also conducted by Gujarat University. Learned Single
Judge also found that if these guidelines are
considered in its proper perspective, then guideline
(d) give power to University/Examining Authority to
approve transfer/migration under intimation to
Pharmacy Council of India and if these guidelines are
construed properly, grant of NOC for transfer of
petitioners-students from respondent no. 5 College to
respondent no. 6 itself suggests that respondent no. 5
college was considered to be approved college or
recognized college by Pharmacy Council of India
because, otherwise,Gujarat University cannot be
permitted the transfer of students means petitioners
from respondent no. 5 college to respondent no. 6
college. The learned Single Judge by detailed
judgment, accordingly allowed the writ petitions
against which the present Letters Patent Appeals have
been filed by the Gujarat State Pharmacy Council and
Pharmacy Council of India, respectively.

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4.Learned Additional Advocate General Mr. Tushar
Mehta appears for the said appellant i.e. Gujarat
State Pharmacy Council. The other five Letters Patent
Appeals have been filed by the Pharmacy Council of
India, on the ground that the directions given by the
learned Single Judge asking the State Pharmacy Council
to give registration to such students as pharmacist is
dehors the Act and no directions could have been given

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JUDGMENT

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LPA/3019/2010

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4/13

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and the students who have passed the course from an
unrecognized institution are not entitled to get any
registration. On behalf of the appellant, learned
Additional Advocate General Mr. Mehta has vehemently
argued that even though the appellant was original
respondent no. 7 in the petition, no service of Rule
was issued to the said respondent no. 7 and the
Special Civil Applications have been decided ex-parte
without giving any notice to the respondent no. 7. On
merits, it is also argued by Mr. Tushar Mehta that the
students have undertaken their study in an
unrecognized institution, and therefore, they are not
entitled to get any benefit and no registration is
required to be conferred to a student who has passed
the course from an unrecognized institution. In order
to substantiate his say, he has relied upon the
provisions of the Pharmacy Act, 1948. It is submitted
by Mr. Mehta that today there are so many unrecognized
institutions operating in the State of Gujarat and
imparting education without any registration only for
the sake of making money by enrolling the students,
and if such students are allowed to undergo the course
and ultimately claims equity, the court should not be
liberal in granting relief in such cases. Learned
Additional Advocate General Mr. Mehta has also relied
upon the decision of the Hon'ble Supreme Court in the

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case of Adarsh Shiksha Mahavidyalaya & Ors vs.
Subhash Rahangdale & Ors, reported in (2012)2 SCC
425, wherein, in para 87, the Hon'ble Supreme Court
has observed, as under:

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(ix)Once the recognition is withdrawn under

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LPA/3019/2010

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5/13

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JUDGMENT

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Section 17(1), the institution concerned is
required to discontinue the course or
training in teacher education and the
examining body is obliged to cancel the
affiliation. The effect of withdrawal of the
recognition is that the qualification in
teacher education obtained pursuant to the
course or training undertaken at such
institution is not to be treated as valid
qualification for the purpose of employment
under the Central Government, any State
Government or university or in any
educational body aided by the Central or the
State Government.

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(xviii) In future, the High Courts shall not
entertain prayer for interim relief by
unrecognisedinstitutionsandthe
institutions which have not been granted
affiliation by the examining body and/or the
students admitted by such institutions for
permission to appear in the examination or
for declaration of the result of examination.
This would also apply to the recognised
institutions if they admit students otherwise
than in accordance with the procedure
contained in Appendix 1 of the Regulations.”

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5.It is argued by Mr. Tushar Mehta as well as Mr.
Dhaval G. Nanavati appearing for the respective
appellants that the directions given by the learned
Single Judge is not in accordance with law and no
unrecognized institution should be allowed to enroll
the students, and even if the students are prosecuting
their study in such institutions, the said students
may not be given any relief by the court. It is
submitted on behalf of the Pharmacy Council of India
that the Pharmacy Council of India has issued
directions to all concerned including the Centralise
Admission Committee about the guidelines and

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JUDGMENT

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LPA/3019/2010

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6/13

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information about the approved institutions under
section 12 of the Act and also issued a press note
that the students who desire to take the admissions in
the pharmacy colleges has to verify whether the
institution is having proper approval by the Pharmacy
Council of India under section 12 of the Act or not.

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6.Learned counsel appearing for the respondents-
students, in turn, argued that it is true that
initially when the students were admitted, the
institution was not recognized but the students were
enrolled through Centralise Admission Committee. The
said committee is enrolling the students for
professional courses. It is submitted that out of five
students, four students were enrolled in the
institution through the Centralise Admission
Committee, and therefore, there was no necessity for
the students to verify whether the institution is
recognized or not. It is submitted that the fifth
student was admitted in the management quota. It is
submitted that after completing one year, for the
second year, they were transferred to a recognized
institution, and at the time, when they passed their
course, they were studying in the recognized
institution, which is not in dispute.

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7.We have heard the learned counsel appearing for
the parties. It is required to be noted that when a
notice is issued by the court asking the respondents
to show cause as to why the matter should not be
admitted, and if, the respondent/respondents, as the
case may be, fails to appear in the matter in response

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LPA/3019/20107/13

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JUDGMENT

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to such notice, and if the Rule is issued, then such
rule is also required to be served again on such
respondent. In a given case, if the notice
specifically states that on the returnable date of the
notice, the court will decide the matter finally, in
such eventuality, it would not be necessary to serve
the Rule again qua the party who is not present in
response to the notice. In the instant case, notice
was issued to the respondents to show cause as to why
the petition should not be admitted. If the court
wanted to decide the matter finally, the notice of
rule was again required to be served on respondent no.
7. In the present case, the matter was decided by the
learned Single Judge without serving the Rule on
respondent no. 7 and in view of the same, the order
passed by the learned Single Judge against respondent
no. 7 is required to be set aside. It is required to
be noted that the respondent no. 7 is not a formal
party, in fact, the main prayer in the writ petition
was against the respondent no. 7. The respondent no. 8
is a different identity altogether. The learned
advocate for respondent no. 8 was not appearing for
respondent no. 7 and had not accepted the notice on
behalf of the respondent no. 7 at the stage of
admission. In view of the same, the order passed
against respondent no. 7 is required to be set aside.

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8.On merits, it is required to be noted that
considering the scheme of the Act, unless the
institution is recognized, no student is allowed to be
permitted to prosecute the study in such unrecognized
institution, and even University is not required to

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JUDGMENT

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LPA/3019/20108/13

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take the examination of such students who have
undergone the study in a unrecognized institution. It
is required to be noted that unfortunately the
Centralise Admission Committee has without verifying
the fact enrolled four students to the college which
was not recognized college at the relevant time. In
our view, learned Single Judge, therefore, was not
right in holding that simply because they were
transferred to a recognized institution later on even
earlier institution can be said to be a recognized
where they were originally enrolled. Even the learned
counsel for the original petitioners also have not
argued on that line before us. This being an important
course of pharmacist where after getting the
registration, the qualified pharmacist will require to
deal with the medical aspect, if person passes the
course of pharmacist through the unregistered
institution it may have adverse effect on public
health. Even in larger public interest, no
registration can be given by the council to a student
who has not passed the course through the unrecognized
institution. At this stage, reference is required to
be made to section 12 of the Pharmacy Act, 1948,
which reads as under:

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12.Approved courses of study and
examinations.- (1) Any authority in a [State]
which conducts a course 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 Education
Regulations, shall declare the said course of
study to be an approved course of study for

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LPA/3019/2010

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9/13

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JUDGMENT

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the purpose of admission to an approved
examination for pharmacists.

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(2)Any authority in a [State] which holds
an examination in pharmacy may apply to the
Central Council for approval of the
examination, and the Central Council, if
satisfied, after such enquiry as it thinks
fit to make, that the said examination is in
conformity with the Education Regulations,
shall declare the said examination to be an
approved examination for the purpose of
qualifying for registration as a pharmacist
under this Act.

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(3) Every authority in the [State] which
conducts an approved course of study or holds
an approved examination shall furnish such
information as the Central Council may, from
time to time, require as to the courses of
study and training and examination to be
undergone, as to the ages at which such
courses of study and examination are required
to be undergone and generally as to the
requisites for such courses of study and
examination.

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9.Considering the said provisions, it is clear that
the State authority which conducts the course of study
for pharmacist is required to apply for approval of
the course to the Pharmacy Council of India and
Pharmacy Council of India is required to declare the
said course of study to be an approved course of study
for the purpose of admission to a particular
examination for pharmacist. The Pharmacy Council of
India is, therefore, a supreme body and it is informed
to the Court that the Centralise Admission Committee
which is constituted by the State Government is given
advance copy of the list of the approved colleges.
Considering the scheme of the Act, therefore, we are

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LPA/3019/2010

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10/13

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JUDGMENT

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not in a position to agree with the reasonings of the
learned Single Judge that when the NOC for transfer is
granted for respondent no. 5 college to respondent no.
6 college itself suggests that respondent no. 5
college was considered to be approved college or
recognized college by Pharmacy Council of India,
because otherwise, Gujarat University cannot be
permitted to transfer the students from one college
to another. With respect, we are unable to agree with
the said reasonings. It is nobody's case before us
even by the learned advocate for the students that
respondent no. 5 institution was a recognized
institution, in fact, it is an admitted fact that
respondent no. 5 institution was not recognized
institution, and as per the scheme of the Act and
procedure, the list of approved colleges are to be
made available well in advance to the Centralise
Admission Committee. Considering the same, the order
of the learned Single Judge on the aforesaid point, in
our view, is not sustainable, and on that ground
alone, the appeals are required to be allowed.

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10.However, during the course of hearing, it is
pointed out to the Court that so far as present group
of five students are concerned, four students were
admitted through the Centralise Admission Committee
which is an independent body and it is not a case that
there was a back-door entry for admission. It is
unfortunate that the Centralise Admission Committee
assigned the students to a particular institution
without verification whether it is recognized or not.
It can be said that there is serious lapse on the part

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LPA/3019/2010

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11/13

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JUDGMENT

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of the Centralise Admission Committee and we hope that
in future the State Government and the committee
appointed by the State will take care while giving
admissions to the students. It seems that the said
Centralise Admission Committee without applying its
mind assigned the students to the unrecognized
institution and mechanically passed such order, which
has put the fate of the students in the jeopardise
and it is for the appropriate authority to consider
the aspect as to why the Centralise Admission
Committee has acted in such a manner. The Court,
therefore, suggested to Mr. Tushar Mehta learned
Additional Advocate General that considering the said
aspect and considering the fact that in subsequent
year, the students were transferred to the institution
which was recognized and from where they passed the
course and in view of this peculiar fact situation of
this case, whether the State Pharmacy Council now may
reconsider their stand in view of the aforesaid facts
emerges in the matter. Learned counsel Mr. Mehta
placed on record the copy of the affidavit filed by
the Additional Registrar, Gujarat State Pharmacy
Council. In para-3 of the said reply, it is averred
that so far as peculiar fact-situation which arises in
case of the present students are concerned, the
Gujarat State Pharmacy Council can make an exception
and without making it a precedent subject to the
approval of Pharmacy Council of India.

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11.In view of the peculiar fact situation of the
present case, while allowing the appeals, we direct
that the order of the learned Single Judge so far as

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JUDGMENT

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LPA/3019/2010

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12/13

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directing the State Pharmacy Council to give
registration to the concerned students, is not
required to be disturbed and the Gujarat State
Pharmacy Council may accordingly grant registration to
the concerned five students who have passed the
aforesaid course from the recognized institution,
which fact is not in dispute.

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12.In view of what is stated above, these appeals
are allowed by setting aside the order of the learned
Single Judge. However, it is directed that the Gujarat
State Pharmacy Council now shall give registration to
the aforesaid five students at the earliest and
communicate the said decision to the Pharmcy Council
of India immediately and the Pharmacy Council of India
may also accordingly take appropriate decision in this
behalf in connection with granting registration to the
aforesaid students at the earliest, and in any case,
in their next Central Council's meeting. It is
clarified that the aforesaid direction is given in
view of the peculiar facts of this case, i.e., the
students were subsequently transferred to the
recognized institution from which they have passed
their course, and at the time of completing the
course, they were already undergoing their course in a
recognized institution. It is also clarified that this
order is passed in view of the consent given by the
Gujarat State Pharmcy Council in view of the peculiar
facts of this case, and therefore, the aforesaid
directions, ipso facto may not be treated as precedent
in other cases. All the appeals are allowed
accordingly. No order as to costs.

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LPA/3019/2010

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13/13

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JUDGMENT

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[P.B. MAJMUDAR, J.]

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[PARESH UPADHYAY, J.]

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mandora/

Secretary, Pharmacy Council of India v. Kamleshbhai Arjun Kumar Maheshwari

Case brief

What is this about?

What did the court decide?

Secretary, Pharmacy Council of India v. Kamleshbhai Arjun Kumar Maheshwari

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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